[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Notices]
[Pages 47862-47864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19648]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


National Environmental Policy Act: Implementing Procedures; 
Addition to Categorical Exclusions for Bureau of Indian Affairs

AGENCY: Department of the Interior.

ACTION: Notice of Final National Environmental Policy Act Implementing 
Procedures.

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SUMMARY: This notice announces the addition of a new categorical 
exclusion under the National Environmental Policy Act (NEPA) to be 
included in the Departmental Manual 516 DM 10. The proposed categorical 
exclusion pertains to the leasing and funding for single-family 
homesites on Indian land, including associated improvements and 
easements, which encompass five acres or less of contiguous land.

[[Page 47863]]


DATES: Effective Date: The categorical exclusion is effective August 
10, 2012.

ADDRESSES: To obtain a copy of the new categorical exclusion contact 
Marvin Keller, NEPA Coordinator--Indian Affairs, 12220 Sunrise Valley 
Drive, Reston, VA 20191, email: Marv.Keller@bia.gov.

FOR FURTHER INFORMATION CONTACT: Marvin Keller, NEPA Coordinator--
Indian Affairs, (703) 390-6470.

SUPPLEMENTARY INFORMATION:

Background

    The need for adequate housing is critical on most Indian 
reservations. Several hundred actions associated with new home 
construction are processed each year and this is expected to continue 
at the same level. The Bureau of Indian Affairs (BIA) has typically 
conducted NEPA reviews of actions associated with single-family homes 
by preparing environmental assessments which resulted in Findings of No 
Significant Impact. The addition of a categorical exclusion to cover 
the actions associated with new home construction will allow for a more 
efficient NEPA review.
    Because this categorical exclusion has important implications for 
actions occurring daily on Indian lands, the BIA initiated consultation 
and requested comments from all federally recognized tribes. This 
consultation period began on March 7, 2012, and concluded on May 14, 
2012. Public comments were also solicited through a notice placed in 
the Federal Register on May 3, 2012 [77 FR 26314]. The proposed 
language for the categorical exclusion as set out in the notice was as 
follows: ``Approval of leases, easements or funds for single-family 
homesites and associated improvements, including but not limited to 
homes, outbuildings, access roads, and utility lines, which encompass 
five (5) acres or less of contiguous land, provided that such sites and 
associated improvements do not adversely affect any tribal cultural 
resources or historic properties and are in compliance with applicable 
federal and tribal laws.''

Comments on the Proposal

    The BIA received responses from 14 tribes and one tribal 
organization. No public responses were received. The responses were in 
the form of letters and email messages. All responses supported the 
proposed categorical exclusion; a few suggested minor changes in the 
language of the categorical exclusion.
    Comment: One respondent expressed a concern about neighboring 
tribes or tribal members constructing homes within their reservation 
without complying with the tribe's laws. The respondent suggested that 
the categorical exclusion should not be available for non-members or 
outside tribes to construct homes on another tribe's lands.
    Response: The categorical exclusion is intended to be applicable to 
all tribes and tribal members who propose to construct single-family 
homes on tribal land or individually-owned Indian land. However, the 
proposed text of the categorical exclusion includes specific language 
that references ``compliance with federal and tribal laws;'' therefore, 
this categorical exclusion could not be used for any home construction 
that does not comply with tribal law. The BIA does not propose any 
additional changes to the language of the categorical exclusion in 
response to this comment.
    Comment: One respondent expressed concern that because of a 
decrease in funds for the BIA Housing Improvement Program (HIP) the 
categorical exclusion would not be effective.
    Response: The HIP funding levels are outside the scope of this 
proposal. However, the categorical exclusion is intended to address all 
BIA actions associated with constructing single-family homes and 
includes actions not associated with HIP funding.
    Comment: A respondent suggested that the categorical exclusion 
should include Housing and Urban Development (HUD) approved housing 
activities.
    Response: The BIA categorical exclusion can only apply to BIA 
actions and cannot apply to another agency such as HUD. The proposed 
BIA categorical exclusion is intended to be consistent with HUD's 
existing categorical exclusions, so that the level of environmental 
review will be similar.
    Comment: A respondent suggested that since the categorical 
exclusion is intended to include new construction this term should be 
added to the text.
    Response: The BIA agrees, and text of the categorical exclusion has 
been changed to clearly indicate that it includes new construction as 
intended.
    Comment: A respondent noted that the BIA Federal Register notice 
indicates a single-family homesite may include one to four dwelling 
units, but the number of dwelling units is not referenced in the text 
of the categorical exclusion. It was suggested that the number of 
dwelling units should be referenced, and that, because the key factors 
limiting the use of the categorical exclusion should be the area of 
land affected (five acres) and the absence of any extraordinary 
circumstances, it should not matter whether the limit of four dwelling 
units are in a single building, two duplexes or four detached units.
    Response: The BIA agrees the categorical exclusion should be 
clearly defined as including one to four dwelling units as intended. 
The BIA also believes that the categorical exclusion should be flexible 
enough to include a range of housing options. We therefore added text 
to the categorical exclusion to clarify that home construction may 
include up to four dwelling units, whether in a single building or up 
to four separate buildings. This clarification will also ensure the 
categorical exclusion is consistent with HUD's existing categorical 
exclusion [24 CFR 58.35(a)(4)(i)].
    Comment: One respondent asked for clarification as to who would 
have approval authority for the categorical exclusion: the agency 
superintendent or a compacted self-governance tribe.
    Response: Because the Federal government is responsible for 
complying with NEPA, the approval authority for the categorical 
exclusion is with the BIA responsible official. Tribes can prepare the 
supporting NEPA documentation, but the approval must remain with the 
BIA.

Conclusion

    The Department of the Interior and the BIA find that the action 
defined in the categorical exclusion presented at the end of this 
notice does not individually or cumulatively have a significant effect 
on the human environment. This finding is based on the analysis of 
similar categorical exclusions used by other Federal departments and 
agencies; the professional judgment of BIA environmental personnel who 
had conducted environmental reviews of similar actions, which resulted 
in Findings of No Significant Impact; and the post-construction 
monitoring of homesites by environmental personnel that verified no 
unforeseen effects had occurred.

Categorical Exclusion

    The Department of the Interior will add the following categorical 
exclusion to the Departmental Manual at 516 DM 10.5:

    Approvals of leases, easements or funds for single family 
homesites and associated improvements, including, but not limited 
to, construction of homes, outbuildings, access roads, and utility 
lines, which encompass five acres or less of contiguous lands, 
provided that such sites and associated

[[Page 47864]]

improvements do not adversely affect any tribal cultural resources 
or historic properties and are in compliance with applicable Federal 
and tribal laws. Home construction may include up to four dwelling 
units, whether in a single building or up to four separate 
buildings.

    Dated: August 3, 2012.
Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2012-19648 Filed 8-9-12; 8:45 am]
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