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89 FR 100245, Dec. 11, 2024, unless otherwise noted.
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Subscribe to: 25 CFR Part 1000 Subpart K - NEPA Process
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No, Tribes/Consortia are not required to carry out any activities involving NEPA in order to enter into a construction project agreement.
(a) A Tribe/Consortium may, subject to the agreement of the Secretary, elect to assume some Federal responsibilities under NEPA, NHPA, and related provisions of other laws and regulations that would apply if the Secretary were to undertake a construction project by adopting a resolution:
(1) Designating a certifying Tribal officer to represent the Indian Tribe and to assume the status of a responsible Federal official under those Acts, laws, or regulations; and
(2) Accepting the jurisdiction of the United States courts for the purpose of enforcing the responsibilities of the certifying Tribal officer assuming the status of a responsible Federal official under those Acts, laws, or regulations.
(b) Notwithstanding paragraph (a) of this section, nothing in this section authorizes the Secretary to include in any compact or funding agreement duties of the Secretary under NEPA, NHPA, and other related provisions of law that are inherent Federal functions.
A Tribe/Consortium may elect to carry out some or all activities involving development and preparation of applicable documentation under NEPA, NHPA and related provisions of other laws and regulations for final review and approval by the Secretary.
No, the Tribe/Consortium may adopt a single resolution or take equivalent Tribal action to assume some environmental responsibilities of the Secretary for NEPA, NHPA, and related laws and regulations for a single project, multiple projects, a class of projects, or all projects performed under 25 U.S.C. 5367.
(a) Depending upon the nature and the location of the construction project, environmental laws related to NEPA and NHPA may include:
(1) Archaeological and Historical Data Preservation Act (54 U.S.C. 3120501 through 3120508);
(2) Archeological Resources Protection Act (16 U.S.C. 470aa et seq.);
(3) Clean Air Act (42 U.S.C. 7401 et seq.);
(4) Clean Water Act (33 U.S.C. 1251 et seq.);
(5) Coastal Barrier Improvement Act (16 U.S.C. 3501 et seq.);
(6) Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.);
(7) Coastal Zone Management Act (16 U.S.C. 1451 et seq.];
(8) Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.);
(9) Endangered Species Act (16 U.S.C. 1531 et seq.);
(10) Farmland Protection Policy Act (7 U.S.C. 4201 et seq.);
(11) Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 through 1445; 16 U.S.C. 1431 through 1447F; 33 U.S.C. 2801 through 2805);
(12) National Trails System Act (16 U.S.C. 1241 et seq.);
(13) Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.);
(14) Noise Control Act (42 U.S.C. 4901 et seq.);
(15) Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.);
(16) Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(17) Toxic Substance Control Act (15 U.S.C. 2601 et seq.);
(18) Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.); and
(19) Wilderness Act (16 U.S.C. 1131 et seq.)
(b) This section provides a list of environmental laws for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
(a) During the environmental review process, the following activities may occur:
(1) Consult with appropriate Tribal, Federal, state, local officials, and interested parties on potential environmental effects;
(2) Document assessment of reasonably foreseeable environmental effects;
(3) Perform necessary environmental surveys and inventories;
(4) Consult with the Advisory Council on Historic Preservation, acting through the SHPO or THPO, to ensure compliance with the NHPA;
(5) In applying a categorical exclusion under NEPA, evaluate whether extraordinary circumstances exist in which a normally excluded project may have a significant effect, and therefore require preparation of an environmental assessment or environmental impact statement;
(6) Identify methods to avoid or mitigate potential adverse effects; and
(7) Obtain environmental permits and approvals as required.
(b) This section is for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
Yes, Council on Environmental Quality (CEQ) regulations direct agencies to make use of high-quality information including reliable data and resources, models, and Indigenous Knowledge, in carrying out their responsibilities under NEPA. The Secretary recognizes that Tribes/Consortia hold relevant information and perspectives regarding the environment, and Indigenous Knowledge can inform the Secretary's environmental analysis. Similarly, section 106 of NHPA (54 U.S.C. 306108) establishes a process to ensure that the Secretary take into account the effects of a project the Department carries out, licenses, or assists on historic properties.
Yes, consistent with 40 CFR 1501.7(b) and 1501.8, a Tribe/Consortium may act as a cooperating agency or joint lead agency for environmental review purposes under this part. For informational purposes only, the term “cooperating agency” is defined at 40 CFR 1508.1(g) and the criteria for a Tribe/Consortium to act as a “cooperating agency” are set out in 40 CFR 1501.8 and Department regulations at 43 CFR 46.225, respectively.
(a) A Tribe/Consortium complies with NEPA and NHPA by:
(1) Developing and adopting their own environmental review procedures that meet or exceed applicable Federal requirements;
(2) Adopting the procedures of the Secretary; or
(3) Adopting the procedures of another Federal agency.
(b) The Tribe/Consortium shall reference such procedures in the funding agreement or construction project agreement and use such procedures in undertaking the project.
No, the Federal agency is responsible for ensuring its own policies and procedures meet the requirements of NEPA, NHPA, and related environmental laws, not the Tribe/Consortium.
Yes, funds are available:
(a) For project-specific environmental costs through the construction project agreement or funding agreement that includes the construction project; and
(b) For environmental review program costs through a funding agreement and/or a construction project agreement.
(a) The Tribe/Consortium and the Secretary shall work together during the initial stages of project development to identify program and project related costs associated with carrying out environmental responsibilities for proposed projects. The goal in this process is to identify the costs associated with all foreseeable environmental review activities.
(b) If unforeseen environmental review and compliance costs are identified during the performance of the construction project, the Tribe/Consortium or, at the request of the Tribe/Consortium, the Tribe/Consortium and Secretary may do one or more of the following:
(1) Mitigate adverse environmental effects;
(2) Alter the project scope of work; and/or
(3) Add additional program and/or project funding, including seeking supplemental appropriations.
(a) A Tribe/Consortium may include costs allowed by applicable provisions of subpart E of 2 CFR part 200, and costs allowed under 25 U.S.C. 5367, 25 U.S.C. 5325 and 25 U.S.C. 5324(m). The cost incurred will vary depending on which phase of the construction process the Tribe/Consortium is conducting and type of construction project agreement that will be used.
(b) Regardless of whether a construction project agreement or funding agreement that includes a construction project is fixed priced or cost-reimbursement, budgets may include costs or fees associated with the following:
(1) Construction project proposal preparation;
(2) Conducting community meetings to develop project documents;
(3) Architects, engineers, and other consultants to prepare project planning documents, to develop project plans and specifications, and to assist in oversight of the design during construction;
(4) Real property lease or acquisition;
(5) Development of project surveys including topographical surveys, site boundary descriptions, geotechnical surveys, archeological surveys, and NEPA compliance;
(6) Project management, superintendence, safety, and inspection;
(7) Travel, including local travel incurred as a direct result of conducting the construction project agreement and remote travel in conjunction with the project;
(8) Consultants, such as demographic consultants, planning consultants, attorneys, accountants, and personnel who provide services, to include construction management services;
(9) Project site development;
(10) Project construction cost;
(11) General, administrative overhead, and indirect costs;
(12) Securing and installing moveable equipment, telecommunications and data processing equipment, furnishings, including works of art, and special purpose equipment when part of a construction contract;
(12) Other costs directly related to performing the construction project;
(13) Project Contingency;
(i) A cost-reimbursement project agreement budgets contingency as a broad category. Project contingency remaining at the end of the project is considered savings.
(ii) Fixed-price agreements budget project contingency in the lump sum price or unit price.
(c) In the case of a fixed-price project agreement, a reasonable profit determined by taking into consideration the relevant risks and local market conditions.
No, the Secretary may not reject a Tribe's/Consortium's final offer of a construction project based on a determination of Tribal capacity or capability.
As described in subpart I of this part, rejection of a final offer by the Secretary for a construction project must be based on a specific finding by the Secretary that clearly demonstrates, or that is supported by a controlling legal authority, that one or more of the statutory criteria under 25 U.S.C. 5366(c)(6) exist to reject the final offer.