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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

The National Environmental Policy Act Procedures Manual

AGENCY: The National Indian Gaming Commission, Interior.
ACTION: Notice.
SUMMARY: The purpose of this notice is to provide an opportunity for public review and comment on the National Indian Gaming Commission (NIGC) draft manual containing policy and procedures for implementing the National Environmental Policy Act of 1969 (NEPA), as amended, Executive Order 11514, as amended, and Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA. Pursuant to CEQ regulations, the NIGC is soliciting comments on its proposed procedures from members of the interested public.
DATES: Comments and related material must be post marked no later than 45 days after publication of this notice.
ADDRESSES: Please submit your comments by only one of the following means: (1) By mail to: Brad Mehaffy, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005; (2) by hand delivery to: National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005; (3) by facsimile to: (202) 632-7066; (4) by e-mail to:nepa_procedures@nigc.gov;or (5) online athttp://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Bradley Mehaffy, NEPA Compliance Officer at the National Indian Gaming Commission: 202-632-7003 or by facsimile at 303-632-7066 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:

The NIGC encourages interested persons to submit written comments. Persons submitting information concerning the NEPA Procedures Manual should include their name, address, and other appropriate contact information. You may submit your information by one of the means listed underADDRESSES. If you submit information by mail or hand delivery, submit them in an unbound format, no larger than 8 ½ by 11 inches, suitable for copying and electronic filing. If you submit information by mail and would like to know it was received, please enclose a stamped, self-addressed postcard or envelope. The NIGC will consider all comments received during the comment period.

Background

This manual will clarify policy and procedures to ensure the integration of environmental considerations into major Federal actions of the NIGC that trigger NEPA review. At present, the NIGC has identified only one type of major Federal action that it performs under the Indian Gaming Regulatory Act (IGRA) that triggers NEPA review—approving contracts for the management of Indian gaming facilities pursuant to 25 U.S.C. 2711. This manual clarifies the NEPA-related roles and responsibilities and establishes a framework for the preparation and consideration of appropriate NEPA documentation, thereby ensuring a balanced and systematic consideration of environmental impacts in the decision-making process of the NIGC.

The proposed manual includes processes for preparing Environmental Assessments, Findings of No Significant Impact, and Environmental Impact Statements. The NIGC proposes to use this manual in conjunction with NEPA, the CEQ regulations at 40 CFR 1500-1508, and other pertinent environmental regulations, Executive Orders, statutes, and laws developed for the consideration of environmental impacts of Federal actions.

This manual identifies several categories of actions taken by the NIGC that are categorically excluded from further NEPA review. In identifying these categories of actions, the NIGC relied on several environmental professionals' opinions and comparisons with other Federal agency actions that are categorically excluded.

A copy of thisFederal Registerpublication, as well as the administrative record for the list of categorical exclusions, is available athttp://www.nigc.gov/Portals/0/NIGC%20Uploads/EPHS/projectsapproved/MANUAL07.pdf.

A copy of theFederal Registerpublication is available athttp://www.regulations.gov.The NIGC solicits public review of its draft NEPA Procedures Manual and will review and consider those comments before the manual is finalized.

National Environmental Policy Act Procedures Manual Forward

This manual was prepared and intended for use by the National Indian Gaming Commission (NIGC) and those parties who seek approval of the NIGC in undertaking actions pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721. Specifically, NIGC personnel, Indian gaming proponents (Tribes), their management or development contractors, and those contractors/consultants involved in the development of environmental review documents must use this manual in order to ensure compliance with the applicable requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347. These procedures are adopted pursuant to the procedural and substantive requirements established by the White House Council on Environmental Quality (CEQ) in its NEPA implementing regulations, 40 CFR 1505.1 and 1507.3.

As of the publication date of this procedures manual, the NIGC has identified only one type of major Federal action it undertakes that requires review under NEPA—approving third-party management contracts for the operation of gaming activity under IGRA, 25 U.S.C. 2711, and the NIGC's implementing regulations, 25 CFR part 533. Depending on the nature of the subject contract and other circumstances, approval of such management contracts may be categorically excluded from NEPA review (SeeChapter 3); it may require the preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) (SeeChapter 4); or it may require the preparation of an Environmental Impact Statement (EIS) and Record of Decision (ROD) (SeeChapter 5). In any case, the proponents of the management contract will be expected to assist the NIGC develop the required NEPA documentation, primarily by paying for environmental consultants to gather information and prepare the required documentation.

The NIGC is aware that the preparation of NEPA documents can be expensive. By adopting this procedures manual, the NIGC hopes to reduce such costs by making clear its procedural and substantive requirements so that Indian Tribes and their management partners will know what is expected and can plan accordingly.

Acronym List BIABureau of Indian Affairs CADDComputer Aided Design and Drafting CATEXCategorically Excluded CEQCouncil on Environmental Quality CFRCode of Federal Regulations CZMACoastal Zone Management Act EAEnvironmental Assessment EISEnvironmental Impact Statement EMSEnvironmental Management System EOExecutive Order EPAEnvironmental Protection Agency ESAEndangered Species Act FOIAFreedom of Information Act FONSIFinding of No Significant Impact GISGeographic Information System IGRAIndian Gaming Regulatory Act LOSLevel of Service MOUMemorandum of Understanding NEPANational Environmental Policy Act NHPANational Historic Preservation Act NIGCNational Indian Gaming Commission NOANotice of Availability NOINotice of Intent OGCOffice of General Council POCPoint of Contact RODRecord of Decision SHPOState Historic Preservation Office(r) SOWScope of Work THPOTribal Historic Preservation Office(r) Chapter 1: Introduction

1.1Purpose.This manual provides National Indian Gaming Commission (NIGC) policy and procedures to ensure agency compliance with the requirements set forth in the Council on Environmental Quality (CEQ) regulations for implementing the provisions of the National Environmental Policy Act of 1969, as amended, (NEPA), 42 U.S.C. 4321-4347, 40 Code of Federal Regulations (CFR) parts 1500-1508 and other related statutes and directives.

1.2Distribution.Notice of adoption and availability of this manual is distributed to all NIGC Directors and the General Counsel for distribution to appropriate NIGC personnel. The manual is available to Indian Gaming proponents, environmental consultants, the public, and other interested parties in electronic form. The manual will be located for viewing and downloading athttp://www.nigc.govby clicking on the link to the Environmental, Public Health and Safety page. If the public does not have access to the Internet, they may obtain a computer disc containing the manual or a paper copy by contacting the NEPA Compliance Officer at (202) 632-7003 or in writing at 1441 L Street, NW., Suite 9100, Washington, DC 20005. The NIGC reserves the right to charge a fee equal to the reproduction costs.

1.3Cancellation.(SECTION RESERVED)

1.4Authority.NEPA and its implementing regulations, promulgated by CEQ in accordance with Executive Order (E.O.) 11514, Protection and Enhancement of Environmental Quality, March 5, 1970, as amended by E.O. 11991 (sections 2(g) and 3(h)), May 24, 1977, establish a broad national policy to protect and enhance the quality of the human environment, and develop programs and measures to meet national environmental goals. Section 101 of NEPA sets forth Federal policies and goals to encourage productive harmony between people and their environment. Section 102(2) provides specific direction to Federal agencies, sometimes called “action-forcing” provisions (40 CFR 1500.1(a), 1500.3, and 1507) on how to implement the goals of NEPA. The major provisions include the requirement to use a systematic, interdisciplinary approach (section 102(2)(A)) and develop implementing methods and procedures (section 102(2)(B)). Section 102(2)(C) requires detailed analysis for proposed major Federal actions significantly affecting the quality of the human environment, providing authority to prepare environmental impact statements (EISs).

1.5Policy.It is the NIGC's policy to:

1.5.1Comply with the procedures and policies of NEPA and other related environmental laws, regulations, and orders applicable to NIGC actions. The NIGC furthermore shall provide guidance designed to enhance and protect the national, Tribal, State and local environmental quality that may be impacted by NIGC actions;

1.5.2Seek and develop partnerships and cooperative agreements with other Federal, Tribal, State and local organizations/departments/agencies early in the NEPA process;

1.5.3Ensure that NEPA compliance and its documentation includes public involvement. Public involvement shall be sought during the appropriate stages of the NEPA process. Public involvement also includes disclosing information in a timely fashion to assist in the public's understanding of NIGC actions and impacts associated with those actions;

1.5.4Interpret and administer, to the fullest extent possible, the policies, regulations, and public laws of the United States administered by the NIGC, including IGRA, in accordance with sections 101 and 102 of NEPA;

1.5.5Consider the environmental factors and potential impacts of Tribal proposals and NIGC actions;

1.5.6Consult and coordinate with, and consider policies and procedures of other Federal, tribal, State and local organizations/departments/agencies;

1.5.7Employ a systematic and interdisciplinary approach to NEPA compliance and documentation prior to taking a major Federal action, such as approving a third-party management contract.

1.6General Responsibilities. All NIGC officials (including the NIGCChairman, NEPA Compliance Officer, and other NIGC staff) responsible for making decisions are also responsible for taking the requirements of NEPA into account in those decisions.

1.7Scope. The NEPA process evaluates, identifies, and addresses impacts of the NIGC's actions on the human environment, including but not limited to noise, socioeconomic factors, land uses, air quality, and water quality. Chapter 2 of this manual presents an overview of the NEPA process. Depending upon the context and potential impacts, NEPA processes can differ. Chapter 3 of this manual addresses those types of NIGC actions that do not normally require preparation of an Environmental Assessment (EA) or Environmental Impact Statement (EIS), called categorical exclusions, absent extraordinary circumstances. Chapters 4 and 5 of this manual outline the processes for preparing EAs and EISs. These procedures apply to classes of NIGC actions that have or may have a significant impact on the human environment. Appendix A, “Environmental Impact Categories,” presents a list of environmental resource categories to be evaluated in all EAs or EISs prepared for or submitted to the NIGC. Appendix B contains a draft Memorandum of Understanding that outlines the roles and responsibilities of cooperating agencies. The draft shall be used as a template. Appendix C provides Third Party Contracting guidance.

1.8Definitions

1.8.1The terminology used in the CEQ regulations (See40 CFR part 1508) and title 49 of the United States Code is applicable.

1.8.2Controversialmeans a substantial dispute exists as to the size, nature, or effect of the proposed action. The effects of an action are considered highly controversial when a reasonable disagreement exists over the proposed action's/project's risk of causing environmental effects. Opposition of this nature from Federal, tribal, State, or local agencies/organizations or by a substantial number of persons affected by the proposed action should be considered in determining whether or not a reasonable disagreement exists.

1.8.3Human environmentshall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.

1.8.4Reasonable alternativesmeans those alternatives that meet the purpose and need statement. In some cases, where there is a consensus among all interested parties regarding the proposed action, other alternatives are not necessary. (SeeCEQ Guidance Memo, “Emergency Actions and NEPA,” dated September 8, 2005, and Section 102(2)(E) of NEPA). The NIGC may consider economics, technical feasibility, and agency statutory missions when establishing the range of reasonable alternatives studied in an EA or EIS (See40 CFR 1505.2(b)).

1.8.5Proposed action(s)can take two different forms. The first are proposed actions that the NIGC is initiating and will undertake on its own. These are actions where the NIGC will be solely responsible for analyses and documentation of the environmental impacts. The second are actions where a tribe is requesting the NIGC take some action. In cases where the tribe is requesting the NIGC take an action, the tribe will be involved in the analyses and documentation of the environmental impacts.

1.8.6Scopingis a process used to determine the extent of analyses to be contained within an environmental impact statement or environmental assessment (See40 CFR 1508.25). The process shall include gathering information on the range of alternatives to be studied, impacts associated with those alternatives, and information regarding the methodologies used to identify the impacts, from other Federal agencies, State/local/tribal agencies, other interested parties and the public. This definition and process does not apply to the scope (size, capacity, or scale) of the project being proposed by a Tribe.

1.9Applicability.The provisions of this manual and the CEQ regulations apply to major Federal actions by the NIGC that may affect the quality of the human environment. These actions may be directly undertaken by the NIGC or where the NIGC has sufficient control and responsibility to condition approvals of a non-Federal entity.

As of the publication date of this procedures manual, the NIGC has identified only one type of major Federal action it undertakes that requires review under NEPA—approving third-party management contracts for the operation of gaming activity under IGRA, 25 U.S.C. 2711, and the NIGC's implementing regulations, 25 CFR part 533. Depending on the nature of the subject contract and other circumstances, approval of such management contracts may be categorically excluded from NEPA review (Seechapter 3); it may require the preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) (Seechapter 4); or it may require the preparation of an Environmental Impact Statement (EIS) and Record of Decision (ROD) (Seechapter 5). In any case, the proponents of the management contract will be expected to assist the NIGC develop the required NEPA documentation, primarily by paying for environmental consultants to gather information and prepare the required documentation. The procedures in this manual shall apply to the fullest extent practicable to ongoing activities and environmental documents begun before the effective date, except that this manual does not apply to decisions made and draft or final environmental documents issued prior to the effective date of this manual.

1.10Section Reserved Chapter 2: The NEPA Process

2.1Introduction. This chapter will provide guidance to the responsible NIGC official (NEPA Compliance Officer), approving official (NIGC Chairman), and other NIGC decision makers in the NEPA process.

2.2The relationship between the NIGC and NEPA. It is the responsibility of the NIGC to regulate Indian gaming in accordance with the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721. It is important that the NIGC comply with NEPA and other environmental laws/regulations/orders during its administration of these responsibilities. Compliance with NEPA and other environmental laws/regulations/orders will ensure that the NIGC makes informed decisions prior to taking an action. It also goes to the furtherance of the NIGC's policies outlined in chapter 1.

2.3Application of NEPA to NIGC decisions/actions. In accordance with NEPA, environmental issues shall be identified and considered early in the process for reviewing a proposed management contract or other applicable action. The NIGC shall use a systematic, interdisciplinary approach. As appropriate, NIGC shall also involve local communities and coordinate with agencies and governmental organizations. Environmental permits and other forms of approval, concurrence, or consultation may be required, often from other agencies.Awareness of any applicable permit application and other review process requirements should be included in the planning process to ensure that necessary information is collected and provided to the permitting or reviewing agencies in a timely manner. This is especially true if applicable laws, regulations, or executive orders specify timeframes for these processes. Tribes/contractors or consultants should prepare a list noting all obvious environmental resources the Tribe's proposed action and alternatives would affect, including specially protected resources. Tribes/contractors or consultants should complete these tasks at the earliest possible time during project planning to ensure full consideration of all environmental resources and facilitate NIGC's NEPA process.

2.4Levels of NEPA Review

2.4.1There are three (3) levels of NEPA review. The level of NEPA review will be dependent on the type and potential impacts of the action being taken. The types of actions taken by the NIGC will be:

2.4.1.1An action that “normally requires an environmental impact statement [EIS]” (40 CFR 1501.4(a)(1));

2.4.1.1.1An EIS is required when an Environmental Assessment (EA) has been done for a proposed action and the impacts of that action will exceed the applicable threshold of significance for any resource category and those impacts cannot be mitigated to a level below the threshold of significance. The threshold of significance for any resource category must be clearly identified within the EA. If the NIGC anticipates that significant impacts will result from a proposed action, it can elect to prepare an EIS without first developing an EA. The NIGC may issue its Record of Decision (ROD) 30 days following the EPA's publication in theFederal Registerof the NOA of the Final EIS. The ROD represents the agency's official decision on the proposed action. The ROD must include all appropriate mitigation measures, as discussed in the Final EIS. (Seealso Section 5.12 of this manual).

2.4.1.2An action that is subject to NEPA but does not qualify for a CATEX (SeeChapter 3) or warrant the preparation of an EIS requires the preparation of an Environmental Assessment (EA).

2.4.1.2.1An EA is not required if the NIGC has elected to prepare an EIS on the proposed action. An EA is appropriate when the NIGC believes that impacts of the proposed action will not result in impacts that meet or exceed the threshold of significance for any impacted resource category. When an EA is prepared and it is determined that the proposed action's impacts will not exceed the threshold of significance, the responsible NIGC official will prepare a Finding Of No Significant Impact (FONSI) to be issued by the NIGC Chairman. The FONSI must include all mitigation measures identified in the EA and required to avoid, eliminate, or reduce the impacts of the proposed action. The FONSI is the official NIGC determination that the proposed action will not result in any significant impacts to the human environment. It does not represent the agency's decision to implement or approve the proposed action.

2.4.1.3An action that “normally does not require either an environmental impact statement or an environmental assessment is categorically excluded” (40 CFR 1501.4(a)(2));

2.4.1.3.1A categorical exclusion (CATEX) identifies a group of actions that typically will not have a significant individual or cumulative impact on the human environment. Unless the proposed action involves an extraordinary circumstance (SeeSection 2.1.3.1.4 of this manual), an EIS or EA is not required.

2.4.1.3.2An action that is typically categorically excluded may or may not have to be documented. The NIGC has determined which types of CATEX actions will be documented and which will not (SeeChapter 3).

2.5Activities Not Subject to NEPA

2.5.1There are some NIGC activities that for NEPA purposes do not meet the traditional meaning of “Federal actions” and therefore are not subject to NEPA review:

2.5.2Advisory Actions:When the NIGC takes an action that is advisory in nature, the requirement to comply with NEPA does not apply. As a result, a CATEX, EA or EIS is not required. However, if the NIGC knows or anticipates that a subsequent Federal action that is subject to NEPA might occur, it must point that fact out in the advisory action. The following are typical actions taken by the NIGC that are advisory in nature:

2.5.2.1NIGC's Office of General Counsel issuance of Indian Lands opinions;

2.5.2.2NIGC's Office of General Counsel issuance of game classification opinions;

2.5.2.3NIGC's Office of General Counsel issuance of advisory opinions regarding whether a contract is a management contract requiring the NIGC Chairman's approval or violates IGRA's sole proprietary interest requirement.

2.5.3Enforcement Actions:The following NIGC actions are administrative enforcement actions that are not considered to be “Federal actions” and are not subject to review under NEPA (40 CFR 1508.18(a)). As a result, a CATEX, EA or EIS is not required.

2.5.3.1Issuance of orders of temporary closure of gaming activities as provided in § 2713(b) of IGRA;

2.5.3.2Levying and collecting civil fines as provided in § 2713(a) of IGRA;

2.5.3.3Making permanent a temporary order of the NIGC Chairman closing a gaming activity as provided in § 2713(b)(2) of IGRA;

2.5.3.4Issuance of subpoenas pursuant to an enforcement action as authorized in § 2715 of IGRA;

2.5.3.5Holding such hearings, sit and act at such times and places, take such testimony, receive such evidence, and render such decisions as the Commission deems appropriate, when done pursuant to an enforcement action, as authorized in § 2706(b)(8) of IGRA;

2.5.3.6Administering oaths or affirmations to witnesses appearing before the Commission, when done pursuant to an enforcement action, as authorized in § 2706(b)(9) of IGRA;

2.5.3.7Issuance of warning letters, notices of violation, civil fine assessments, closure orders, or any other action consistent with the Commission's authority to enforce IGRA, the NIGCs regulations, and approved Tribal gaming ordinances.

2.5.4Emergency Actions:In the event of an emergency situation, the NIGC may be required to take an action to prevent or reduce the risk to the environment, public health, or safety that may impact the human environment without evaluating those impacts under NEPA. Upon learning of the emergency situation, the NIGC NEPA Compliance Officer will immediately inform CEQ of the emergency situation when the proposed NIGC action is expected to result in significant impacts on the human environment. In some cases, the emergency action may be covered by an existing NEPA analysis or an exemption. In other cases, it may not be covered. In these cases, the NIGC NEPA Compliance Officer (in consultation with CEQ) will obtain guidance on NEPA compliance. The NIGC NEPA Compliance Officer will provide continued follow-up consultation with CEQ throughout the duration of the emergency situation. The provisions of this section do not apply to actionstaken after the emergency situation has been resolved or those related to recovery operations.

In cases where the NIGC proposed action is not expected to result in significant impacts on the human environment, the NIGC NEPA Compliance Officer shall ensure the appropriate NEPA documentation (CATEX or EA) is prepared following the actions required to control the emergency and before any follow-up actions are taken.

2.5.5Statutory Conflict:In some cases, the NIGC's statutory requirements are inconsistent with NEPA. The following NIGC action(s) have been determined to fit into this category:

2.5.5.1Approval of Tribal gaming ordinances or resolutions as provided in § 2710 of the IGRA, which must be completed within ninety (90) days of submission to the NIGC.

2.6Early Application of NEPA

2.6.1Before a Tribe submits a proposed action to the NIGC, it should consult with the NIGC's NEPA Compliance Officer at 1441 L Street, NW., Washington, DC 20005 or (202) 632-7003. The Tribe should notify the NEPA Compliance Officer as early in the Tribal planning process as possible. The NEPA Compliance Officer will assist the Tribe by identifying the studies and information required for the NIGC action and initiating consultation with Federal, State, and local agencies and other Tribal governments, if necessary. The consultation should informally present the proposed action as the Tribe has planned it. The NEPA Compliance Officer will then assist the Tribe to identify the action's potential environmental impacts. This will help ensure that there will be an evaluation of a suitable range of alternatives. It will also allow the NIGC to ensure that the appropriate level NEPA review has been selected.

2.6.2Early consultation with the NIGC's NEPA Compliance Officer and theCooperating Agencyenvironmental personnel will help determine which agency will be “Lead Federal Agency.”

2.6.3Consultation with other Federal, Tribal, State and local agencies will ensure the analysis of environmental impacts for individual resource categories is sufficient for approval, concurrence, or permitting by another agency.

2.6.4Early and frequent involvement of the public will ensure the public is provided with the most accurate information regarding the proposed action and meets the NEPA policy to “Encourage and facilitate public involvement in decisions which affect the quality of the human environment” (40 CFR 1500.2(d)).

2.7Responsibilities 2.7.1NIGC Responsibilities

2.7.1.1NIGC Chairman (Chairman):The Chairman shall approve and sign all NEPA decision documents (FONSI, ROD).

2.7.1.2NIGC Director of Contracts (Director):The Director will supervise the day-to-day activities of the NEPA Compliance Officer. The Director will ensure that all matters raised by the NEPA Compliance Officer will get the attention due from the appropriate NIGC personnel.

2.7.1.3NIGC NEPA Compliance Officer (Officer):The Officer shall be responsible for providing the NIGC with the most up-to-date environmental information that could affect NIGC actions. The Officer shall develop and propose NIGC policy as it relates to NEPA. The Officer will be responsible for the technical review of all CATEX documentation, EAs and EISs. The Officer shall consult and work with Tribes requesting an NIGC action to prepare and develop the appropriate NEPA documentation (a CATEX or an EA). The Officer shall independently review and evaluate the CATEX or Draft/Final EA to ensure the NIGC's decision is made objectively and no conflict of interest exists. The Officer will then make recommendations regarding the decision to prepare an EIS. When an EIS is required, the Officer shall review the qualifications and select the third-party contractor. The Officer will be the NIGC's Project Manager and direct all work being done for inclusion in the EIS. The Officer will prepare or have prepared NEPA decision documents (FONSIs or RODs) for proposed actions. The Officer may also be referred to in this manual as the “responsible NIGC official.”

2.7.1.4NIGC Office of General Counsel (OGC):The OGC shall be responsible for reviewing all EISs and providing a determination regarding the EISs' legal sufficiency. The OGC shall be consulted on legal matters that arise during the preparation of any NEPA compliance document.

2.7.2Lead/Cooperating Agencies responsibilities:The roles of lead and cooperating agencies can be found in CEQ regulations § 1501.5 through § 1501.6. In addition to the rights and responsibilities found in the CEQ regulations, a Memorandum of Understanding (MOU) should be executed to document each agency's rights and responsibilities that are specific to a particular proposed action. When other Federal, Tribal, State and local agencies/organizations request cooperating agency status, the NIGC's decision regarding their status should be documented by entering into a Memorandum of Understanding (MOU) (SeeAppendix B).

2.7.3Tribal responsibilities:The Tribe, after consultation with the NIGC NEPA Compliance Officer, shall be responsible for assisting in the preparation of the CATEX or EA documentation for its proposed action. The Tribe is also responsible for correcting deficiencies in the documentation to the satisfaction of the NIGC. During the preparation of an EIS, the Tribe's role will be limited to providing planning information and other environmental information, as appropriate. The Tribe or its proposed management contractor also will be responsible for funding the preparation of the appropriate NEPA documentation (SeeSection 2.7.6).

2.7.4Contractors/Consultants (Consultants) responsibilities:Consultants that prepare NEPA review documents for the NIGC or for a non-NIGC party seeking NIGC approval must comply with this manual. Consultants preparing EISs are required to sign a disclosure statement in accordance with 40 CFR 1506.5(c). Consultants shall keep and maintain an administrative record for all EA/EIS(s) prepared for proposed NIGC action(s).

2.7.5Public involvement:NEPA is a process that requires public involvement. It not only requires an agency to consider environmental information when it makes a decision, but also requires that the agency consider the public's views concerning that environmental information. At appropriate times in the NEPA process, the NIGC and Tribe shall take necessary steps to ensure the public is made aware of the environmental information concerning a proposed action and will be given an opportunity to provide their views to the NIGC. In addition, the NIGC shall ensure the public is provided an opportunity to participate before the NIGC makes substantial changes to this manual.

2.7.5.1The NIGC or Tribe should involve the public early in the NEPA process. In most cases, the public's first involvement will be during scoping. The extent to which the public is involved in scoping will be dependent on the complexity and context of the proposed action.

2.7.5.2The public must also be involved during the draft and final EA/EIS stages. The public must be given an opportunity to review and provide comments on the NEPA document.Comments received on a draft EIS and the NIGC's responses will be contained in an appendix to the final document. Final EAs should document that public comments on the draft were considered before the final EA was published.

2.7.5.3When possible, the public process used to satisfy NEPA should also be used to meet the other statutory requirements that require public involvement (e.g.,Section 106 of the National Historic Preservation Act, Executive Order 12898,etc.).

2.7.6Funding responsibilities:When a Tribe requests NIGC approval of a management contract, the Tribe or its proposed management contractor will be responsible for funding the preparation of the appropriate NEPA documentation, as determined by the NIGC. If the NIGC is proposing an action subject to NEPA compliance, the NIGC will be responsible for funding the preparation of the appropriate NEPA documentation. When an EIS is required, the NIGC must maintain the authority to direct the work of the environmental contractor/consultant hired to prepare the EIS, even if a Tribe or management company is paying for the environmental contractor's services (SeeSections 2.7.1.3 and 5.2).

2.8Public Hearings, Workshops and Meetings

2.8.1The environmental information presented to the public can occur in one or more types of forums (e.g.a public hearing, workshop or meeting) and will greatly contribute to the success of the NEPA process. In determining which is the appropriate forum to disclose environmental information about the proposed project, the complexity and potential magnitude of environmental impacts must be considered. Also consider the degree of interest that is exhibited by other Federal, Tribal, State and local authorities and the public.

2.8.1.1When the NIGC plans to hold a public hearing, workshop or meeting for the purposes of obtaining public comments on a draft EA or EIS, the draft document should be available to the public for at least 15 days before the hearing/workshop/meeting occurs. A public announcement regarding the hearing/workshop/meeting on a draft NEPA document should appear in local newspapers that have general circulation. For a draft EIS, a Notice of Availability (NOA) will also be published in theFederal Registerby EPA. The content of notices announcing a hearing, workshop or meeting will vary depending on the type of NEPA document being prepared.Seesections 4 and 5 of this manual for content of notices announcing a draft, final EA and/or FONSI or a draft, final EIS and/or ROD, respectively.

2.9Plain Language and Geographic Information

2.9.1Information contained in a NEPA document prepared in accordance with this manual must be disclosed in a manner in which the public will be able to participate in the NEPA process. The written language within a NEPA document shall comply with 40 CFR 1502.9. In addition, preparation of NEPA documents by or for the NIGC must comply with Executive Order 12906, Coordinating Geographic Data Acquisition and Access.

2.10Reducing Paperwork

2.10.1CEQ regulation 40 CFR 1500.4 encourages the reduction of paperwork. Without compromising the administrative record for a proposed action, the NIGC should, to the greatest extent possible, combine NEPA requirements with other applicable environmental laws and regulations. The NIGC will also have joint documents prepared whenever possible. In addition, information may be incorporated by reference when appropriate.

2.11Reducing Delay

2.11.1CEQ regulations require agencies to reduce delay (See40 CFR 1500.5). The responsible NIGC official shall reduce delay by doing the following:

2.11.1.1Integrating other environmental requirements (e.g.permitting and approvals) early in the NEPA process. In some cases, integration may require NEPA and other environmental requirements to be addressed concurrently.

2.11.1.2Develop and maintain relationships with other Federal, Tribal, State and local agencies/organizations. As a part of maintaining a relationship, the responsible NIGC official shall ensure prompt resolution of disputes under 40 CFR 1501.5.

2.11.1.3Ensure the Tribes and consultants develop reasonable and achievable goals and milestones as part of the NEPA process.

2.11.1.4Use the NEPA documentation to fulfill other environmental documentation requirements.

2.12Intergovernmental and Interagency Coordination and Consultation

The NIGC official or the Tribe, when appropriate, will consult with other Federal, Tribal, State and local agencies/organizations early and often in the NEPA process. During the NEPA process, consultation will include scoping, commenting on the environmental impacts of the proposed action, reviewing draft and final NEPA documents, providing input on the preparation of NIGC findings, and developing appropriate mitigation strategies. In addition to these agencies' input during the NEPA process, these agencies may also be consulted regarding other environmental requirements (e.g.permitting and approvals).

2.12.1Tribal Consultation shall be conducted in accordance with the NIGC's Government-to-Government Tribal Consultation Policy, as may be amended.

Chapter 3: Categorical Exclusions (CATEX) and Extraordinary Circumstances

3.1Introduction.This chapter will explain the types of NIGC actions that must comply with NEPA but are typically categorically excluded. This chapter will also discuss the circumstances in which those actions will not be categorically excluded and will require the preparation of an EA or EIS. The responsible NIGC official shall be consulted if there is a question regarding the applicability of a CATEX or possible extraordinary circumstances to a proposed action/project.

3.2Categorical Exclusion (CATEX) Screening

The use of a CATEX can only be applied to an action if all of the following criteria are met:

3.2.1The responsible NIGC official must determine that the NIGC action is encompassed by one of the listed CATEXs in Section 3.3 of this manual.

3.2.2The responsible NIGC official must determine that the action has not been segmented in order for the NIGC action to meet the definition of an action that can qualify for a CATEX. Segmentation occurs when an action is broken into smaller parts in an effort to avoid properly documenting impacts associated with the complete action. Segmentation also occurs when the NIGC action is too narrowly defined and the potential impacts are minimized in order to avoid a higher level of NEPA documentation. Connected and cumulative actions must be considered (See40 CFR 1508.25).

3.2.3The responsible NIGC official must determine if the NIGC action will involve any of the extraordinary circumstances as defined in Section 3.4 of this manual.

3.3Categorical Exclusions

In accordance with Chapter 2, Section 2.4.1.3, the NIGC, based on past experience with similar actions, has determined that the following types of actions are categorically excluded and do not require the preparation of an EA or EIS because they will not individually or cumulatively result in a significant impact on the human environment. These types of Federal actions meet the criteria established in 40 CFR 1508.4.

3.3.1Category 1—Administrative and Routine Office Activities:

A. Normal personnel, fiscal, and administrative activities involving personnel (recruiting, hiring, detailing, processing, paying, supervising and records keeping).

B. Preparation of administrative or personnel-related studies, reports, or investigations.

C. Routine procurement of goods and services to support operations and infrastructure, including routine utility services and contracts, conducted in accordance with applicable procurement regulations, executive orders, and policies (e.g.Executive Order 13101).

D. Normal administrative office functions (recordkeeping; inspecting, examining, and auditing papers, books, and records; processing correspondence; developing and approving budgets; setting fee payments; responding to requests for information).

E. Routine activities and operations conducted in an existing non-historic structure that are within the scope and compatibility of the present functional use of the building, will not result in a substantial increase in waste discharge to the environment, will not result in substantially different waste discharges from current or previous activities, and will not result in emissions that exceed established permit limits, if any. In these cases, a Record of Environmental Consideration (REC) documentation is required.

F. NIGC training in classrooms, meeting rooms, gaming facilities, or via the Internet.

3.3.2Category 2—Regulation, Monitoring and Oversight of Indian Gaming Activities:

A. Promulgation or publication of regulations, procedures, manuals, and guidance documents.

B. Support of compliance and enforcement functions by conducting compliance training for Tribal gaming regulators and managers in classrooms, meeting rooms, gaming facilities, or via the Internet.

C. Preparing and issuing subpoenas, holding hearings, and taking depositions for informational gathering purposes, not associated with administrative enforcement actions. (NOTE:Activities associated with administrative enforcement actions are not subject to NEPA review,SeeSection 2.5.3 of this manual.)

3.3.3Category 3—Management Contract and Agreement Review Activities:

A. Approval of management contracts and collateral agreements (e.g.development, construction, or financial agreements) or management contract amendments that meet the following criteria: (1) Involve no physical construction, other than interior renovations and minor exterior work on or in structures that are not listed or eligible for listing on the National Register of Historic Places; and (2) are not associated with plans to considerably increase patronage.

B. Conducting background investigations in connection with a management contract amendment that only changes the persons or entities with a financial interest in or management responsibilities for the contract.

3.4Extraordinary Circumstances

Some types of actions that would normally be categorically excluded may not qualify for a CATEX because an extraordinary circumstance exists (See40 CFR 1508.4). The responsible NIGC official must evaluate each proposed action and use best professional judgment to determine if it meets the CATEX requirements in Section 3.2.1 and does not have any extraordinary circumstances. If the proposed action has one or more of the following conditions, extraordinary circumstances exist and the action cannot be categorically excluded:

3.4.1There is a reasonable likelihood the proposed action/project will have a significant impact on public health or safety.

3.4.2There is a reasonable likelihood the proposed action/project would involve effects on the environment that involve risks that are highly uncertain, unique, or are scientifically controversial.

3.4.3There is a reasonable likelihood the proposed action/project would violate one or more Federal, Tribal, State, or local environmental laws/regulations/orders.

3.4.4There is a reasonable likelihood the proposed action/project will have an adverse effect on a property or structure eligible for listing or listed on the National Register of Historical Places, including degradation of scientific, cultural, or historic resources protected by the National Historic Preservation Act of 1966, as amended.

3.4.5There is a reasonable likelihood the proposed action/project will have an impact on natural, ecological, or scenic resources of Federal, Tribal, State and/or local significance. These resources include Federal or State listed endangered, threatened, or candidate species or designated or proposed critical habitat under the Endangered Species Act (ESA); resources protected by Coastal Zone Management Act (CZMA); resources protected by the Fish and Wildlife Coordination Act; prime, unique, Tribal, State or locally important farmlands; and Federal or State listed wild or scenic rivers.

3.4.6There is a reasonable likelihood the proposed action/project will cause a division or disruption of an established community, planned development, or is inconsistent with existing community goals/plans.

3.4.7There is a reasonable likelihood the proposed action/project will cause an increase in surface transportation congestion that will decrease the level of service below acceptable levels, as defined by the appropriate Federal, Tribal, State, or local agency with jurisdiction for that portion of the transportation system.

3.4.8There is a reasonable likelihood the proposed action/project will impact air quality or violate Federal, Tribal, State, or local air quality standards under the Clean Air Act Amendments of 1990.

3.4.9There is a reasonable likelihood the proposed action/project will impact water quality, sole source aquifers, public water supply systems or Tribal, State, or local water quality standards established under the Clean Water Act and the Safe Drinking Water Act.

3.4.10There is a reasonable likelihood the proposed action/project will have effects that are likely to be highly controversial on environmental grounds.

3.5Categorical Exclusion Documentation

3.5.1The purpose of categorical exclusions is to reduce paperwork and delay. The NIGC is not required to repeatedly document actions that qualify for a categorical exclusion and do not involve an extraordinary circumstance (See40 CFR 1500.4(p)). This also allows NIGC environmental resources to focus on proposed actions that require an EA or EIS.

3.5.2In some cases, the NIGC will document its decision to treat a particular action as categoricallyexcluded from further NEPA review. In those cases, a Record of Environmental Consideration (REC) will include:

• A complete description of the proposed action/project.

• The CATEX relied upon, including a brief discussion of why there are no extraordinary circumstances.

• Supplemental documentation that supports the conclusions in the narrative. Examples include exhibit(s) showing boundaries of historical or archeological site(s) previously identified near the proposed project, documentation from the U.S. Fish and Wildlife Service noting that no endangered species or habitat is present near the proposed project, evidence that the proposed project site is located outside any non-attainment area(s),etc.In some cases, a “no effect” determination from the SHPO/THPO may be required.

• The following statement:I certify that, to the best of my knowledge, the information provided is the best available information and is accurate.

• A signature from an environmental professional with a signature block that includes the professional's credentials.

Chapter 4: Environmental Assessments (EA) and Findings of No Significant Impacts (FONSI)

This chapter will provide information regarding the preparation of an EA and FONSI. The EA must provide all pertinent information to aid the NIGC in its decision-making process. If the information contained in the EA demonstrates that the proposed action will not have significant impact on the human environment, the NIGC can then issue such a finding of no significant impact, otherwise known as a FONSI.

4.1When to prepare an EA.An EA will be prepared when a proposed action meets the following conditions:

4.1.1The proposed action is not categorically excluded in accordance with Chapter 3;

4.1.2The proposed action is normally categorically excluded, but extraordinary circumstances exist in accordance with Chapter 3; or

4.1.3The proposed action is not one that requires the preparation of an EIS in accordance with Chapter 5;

4.2Proposed action not causing a significant environmental impact.When the NIGC, upon reviewing the EA, has determined that the proposed action will not cause a significant environmental impact, the NIGC NEPA Compliance Officer will prepare or have prepared a Finding of No Significant Impact (FONSI) for review and signature by the NIGC Chairman.

4.3Proposed action causing a significant environmental impact.When the NIGC, upon reviewing the EA, has determined that the proposed action will cause a significant environmental impact, and mitigation measures will not reduce the impact below the appropriate threshold of significance, the NIGC NEPA Compliance Officer will prepare and issue a Notice of Intent (NOI) to prepare an EIS (SeeChapter 5). If it is anticipated that the proposed project will result in a significant environmental impact that cannot be mitigated, the NIGC can decide to prepare an EIS without first developing an EA.

4.4Content of an EA

4.4.1Any EA prepared for the NIGC must contain a brief discussion of the proposed action, the need for the proposed action, a range of reasonable alternatives (as required by Section 102(2)(E) of NEPA), the environmental impacts of the proposed action and alternatives, a list of alternatives eliminated from further analysis with an explanation of why they were eliminated, mitigation measures needed to reduce environmental impacts to below the level of significance, and a list of the agencies and persons consulted.

4.4.2The level of detail and depth of impact analysis should normally be limited to the minimum needed to determine whether the proposed action or alternatives retained for further analysis would result in any significant environmental impacts.

4.4.3The EA will contain objective analyses to support its environmental impact conclusions. The EA must not draw any conclusions regarding the decision to prepare an EIS. The decision whether to prepare an EIS will be made by the responsible NIGC official and documented in either an NOI or a FONSI.

4.4.4Previous NEPA analyses should be used in a tiered analysis or transferred and used in a subsequent analysis to enhance the content of an EA whenever possible. The use of previous NEPA analyses can be incorporated by reference or may be adopted, as per Section 4.7 of this manual.

4.5Actions normally requiring an Environmental Assessment (EA).The following are examples of actions that normally will require the preparation of an EA. When a proposed project involves multiple actions by the NIGC, Cooperating Agency and/or other Federal agencies, the overall significance of these actions, when viewed together, governs whether an EA or an EIS is required. Consultation with the other agencies or organizations may be required to ensure all Federal actions are adequately covered by the NEPA document prepared.

4.5.1Approval of a new management contract, or a modification of an existing management contract that involves, either directly or through a collateral agreement, development of a new Indian gaming facility, and after a preliminary review, the potential environmental impacts are not expected to exceed, or can be mitigated to a level below, the appropriate level(s) of significance.

4.5.2Approval of a new management contract, or a modification of an existing management contract, that involves, either directly or through a collateral agreement, a physical expansion of an existing facility, and after a preliminary review, the potential environmental impacts are not expected to exceed, or can be mitigated to a level below, the appropriate level(s) of significance.

4.5.3Approval of a new management contract, or a modification of an existing management contract, that does not involve a physical expansion of the facility, but where the management contractor plans to considerably increase patronage, and after a preliminary review, the potential environmental impacts of the increased patronage are not expected to exceed, or can be mitigated to a level below, the appropriate level(s) of significance.

4.6Time limits for EAs.The information contained in an EA is only valid for a finite period of time. This section will outline when an EA's information must be updated.

4.6.1A draft EA is normally valid for a period of three (3) years unless there are substantial changes in the proposed action or there are significant new circumstances or information relevant to environmental concerns regarding the proposed action or its impacts. In cases where there is significant new circumstances or information, a written re-evaluation must be undertaken. (SeeSection 4.15). If the NIGC has not issued a FONSI within three (3) years of receipt of the Final EA, a written re-evaluation (SeeSection 4.15) must be prepared and submitted to the responsible NIGC official for consideration and determination if the alternatives, impacts, existing environment, and mitigation measures in the EA remain applicable, accurate, and valid. If there has been a significant change in these factors from that which was originally considered in the EA, a supplement to the EA (SeeSection 4.16) or a new EAmust be prepared in accordance with the procedures of this chapter.

4.6.2For EAs where the NIGC has approved and issued a FONSI, the EA's information must be reviewed and updated when the following conditions have been established:

4.6.2.1If major steps toward implementation of the project (such as the start of construction, substantial acquisition, or relocation activities) have not commenced within three (3) years from the date of issuance of the FONSI, a written re-evaluation (SeeSection 4.15) of the continued adequacy, accuracy, and validity of the EA will be prepared and submitted to the responsible NIGC official. If there have been significant changes in the project, the affected environment, anticipated environmental impacts, or proposed mitigation measures, as appropriate, a new or supplemental EA (SeeSection 4.16) will be required.

4.6.2.2If the proposed project is to be implemented in stages or requires successive Federal approvals, a written re-evaluation (SeeSection 4.15) of the adequacy, accuracy, and validity of the EA will be made at major approval points that occur more than three (3) years after issuance of the FONSI, and a new or supplemental EA may be required.

4.7Adoption.In some cases, the NIGC may adopt, in whole or in part, a draft or final EA or the EA portion of an EA/FONSI prepared for another Federal, Tribal, State or local agency/organization if it meets the requirements of this chapter. As part of the adoption process:

4.7.1Prior to adoption of another agency/organization's EA, the NIGC must complete an independent evaluation of the information contained in the EA, take full responsibility for scope and content that addresses NIGC actions, and issue its own FONSI. If the EA is found to comply with this chapter and relevant provisions of CEQ regulations, the responsible NIGC official will recommend adoption and signature to the NIGC Chairman.

4.7.2When appropriate and efficient, the responsible NIGC official may augment such an EA when it is essentially, but not entirely, in compliance with this chapter and/or relevant provisions of CEQ regulations, in order to make it compliant.

4.7.3Adoption or augmentation of an EA shall receive the same public participation that the EA would have received if it had originated with the NIGC.

4.7.4If the NIGC decides to adopt, in whole or in part, a draft or final EA or the EA portion of an EA/FONSI prepared for another Federal, Tribal, State or local agency/organization, the time requirements established in Section 4.6 shall apply.

4.8Impact Categories.Appendix A of this manual identifies resource categories that the NIGC examines for its actions under NEPA. It should be noted that the list of resource categories in Appendix A is not exhaustive. In some circumstances, additional resource categories may need to be added. It is recommended that prior to conducting analysis under any of these categories, the responsible NIGC official be consulted regarding methodologies, thresholds of significance, mitigation measures, and permitting.

4.9Environmental Assessment (EA) Process.This section shall apply when the responsible NIGC official has determined that the proposed action cannot be categorically excluded and the anticipated environmental impacts do not warrant preparation of an EIS.

4.9.1The EA process begins with the responsible NIGC official or Tribe requesting an NIGC action, gathering background data, and coordinating/consulting with other agencies. This information will be used to formulate the proposed action and reasonable alternatives to achieve the project's purpose and need.

4.9.2If a Tribe is proposing an action, the Tribe will draft a purpose and need statement for the proposed project and the responsible NIGC official will determine its adequacy. If the NIGC is proposing an action, the responsible NIGC official will develop a purpose and need statement for the proposed project.

4.9.3While not required by CEQ regulations, the responsible NIGC official and Tribe proposing the action may elect to initiate scoping. If it is determined to conduct scoping, the public will be notified of how they can participate in the scoping process.

4.9.4The responsible NIGC official or Tribe proposing the action will have the EA document prepared with a level of analysis sufficient to:

4.9.4.1Understand the purpose and need for the proposed action, identify a range of reasonable alternatives (including the no-action alternative), and assess potential environmental impacts.

4.9.4.2Determine if potential environmental impacts are significant enough to require the preparation of an EIS or if a FONSI can be issued.

4.9.4.3Identify any permits, licenses, other approvals, or reviews that apply to the proposed action.

4.9.4.4Identify agencies, including cooperating agencies, consulted or to be consulted.

4.9.4.5Identify all public involvement activities (e.g.scoping or public workshops).

Figure 4-1—Environmental Assessment Process for an NIGC Action Step 1 • The responsible NIGC official or Tribe proposing the action formulates the proposed action and a range of reasonable alternatives, in accordance with Section 102(2)(E) of NEPA, to achieve the project's purpose and need. Step 2 • Responsible NIGC official or Tribe proposing the action collects background data. Step 3 • Responsible NIGC official determines the need for an EA. Step 4 • Initiate scoping, if appropriate, and determine issues and alternatives to be addressed. Step 5 • Prepare preliminary draft EA. Step 6 • Responsible NIGC official and other cooperating agencies review preliminary draft EA. Step 7 • Prepare a revised draft EA in accordance with appropriate comments from the responsible NIGC official and other cooperating agencies. Step 8 • Circulate the revised draft EA to the public and other Federal, Tribal, State and local agencies/organizations for comment. Step 9 • Prepare final EA based on comments received. Step 10 • Responsible NIGC official determines significance of impacts. Step 10a • If impacts are NOT significant, responsible NIGC official prepares or has prepared a FONSI for the NIGC Chairman's review and decision. Step 10b • If impacts ARE significant, responsible NIGC official proceeds with an EIS (SeeChapter 5). Do not go to Step 11. Step 11 • Publish the final EA and FONSI. Step 12 • NIGC proceeds with action, and if applicable, mitigation and monitoring.

4.9.5