During the Construction in Indian Country 2018 Annual Conference, Eunice Tso led a workshop session on Friday morning called “Environmental Permitting in Indian Country.”

1. Environmental
Permitting in Indian
Country
TIPS & INFORMATION FOR ARCHITECTS AND ENGINEERS
ON COMPLIANCE WITH NEPA & CERCLA

2. Presentation Contents
1. Overview of Environmental
Assessment vs. Environmental Site
Assessment
2. National Env. Policy Act (NEPA)
Review
a. Sequencing NEPA with Other Laws
b. Federal Agency Guidelines
c. Examples of Federal Actions
d. Typical permits required for NEPA
projects
3. Our Approach to NEPA
4. Environmental Site Assessments
a. Phase I ESA Components
b. Phase II ESA Overview
c. Phase III ESA Overview
5. Questions & Answers
6. Thank You! (And Contact
Information)

3. Environmental Assessment (EA) v.
Environmental Site Assessment (ESA)
 The National Environmental Policy Act (NEPA) is the basic national
charter for protection of the environment. Under NEPA there are three
levels of compliance: Categorical Exclusion (Cat Ex); Environmental
Assessment (EA); and Environmental Impact statement (EIS)
 Environmental Site Assessments (ESA) are conducted as due diligence in
property acquisition. New property owners may be held liable for clean-up
of environmental contamination discovered after a sale under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA, aka “Superfund”) and Superfund Amendments and
Reauthorization Act (SARA). Also, ESA are conducted before demolition
to determine if there’s asbestos, lead-based paint that will be removed.
Generally, there are three Phases to an ESA.

4. Lets review NEPA….
 NEPA is the basic national charter for protection of the environment. Its’
primary purpose is to assist decision makers and to provide a transparent
planning process.
 Federal actions trigger the NEPA process; however, many tribes have their own
mini NEPA process that they utilize when there is no federal action. For example,
business-site leasing on some tribal lands.
 Because Tribes have retained Tribal sovereignty for environmental protection on
lands within their jurisdiction, activities on tribal land often require the approval
of both federal agencies and tribal governments.

5. Sequencing other related laws with NEPA
The NEPA process must integrate and sequence other environmental review procedures so that such
procedures run concurrently rather than consecutively.
 Federal laws and Agency Regulations
 National Historic Preservation Act [16 U.S.C. § 470 et seq.] –Evaluates impacts to historic, archaeologic, and traditional properties
 Endangered Species Act [16 U.S.C. § 1531 et seq.] – Evaluates impacts to Federal and Tribally-listed threatened or endangered species
 Clean Water Act [33 U.S.C §1251 et seq.] – Identifies if permits are required (i.e., 401 certification, 402 and 404 permits)
 Farmland Protection [7 CFR 658] – Evaluates impacts to prime and unique Farmlands
 Clean Air Act [42 U.S.C. §7401 et. seq. and 40 CFR parts 6, 51,61, 93] –Identifies if project activities will impact air quality.
 Executive Orders
 Floodplain Management [24 CFR 55, Executive Order 11988] –need floodplain maps to evaluate impacts
 Wetland Protection –National Wetland Inventory Map to determine if wetlands are near or would be impacted
 Environmental Justice [Executive Order 12898]—Will low income communities be unjustly impacted?
 Tribal Laws and Regulations/Policies and Procedures –Each Tribe is different

6. Federal Agency Guidelines
BIA IHS

7. Examples of Federal Nexus in Indian
Country
AGENCY
 BIA Approves leases, utilities and highway ROWs
 BLM Approves oil and gas developments
 HUD Approves and funds housing projects
 USDA Approves grants and loans to infrastructure and Econ. Dev.
 IHS Approves water and wastewater projects for IHS Office of
Environmental Health

8. Our Approach
TO NEPA

9. Provide essential information to the
Environmental Consultant
To get started on an environmental review, we generally request the following
items from clients:
1. Legal Survey – shows project boundaries & land status
2. Project Description – provide information about the project scope (i.e.,
building size, dimensions, parking lots), off site staging areas, access & egress,
utility connections, etc.
3. Cultural Resource Investigation (aka archaeological survey). This survey is very
site specific and clearly delineated project boundaries and ROWs. The main
goal is to avoid any cultural resources.
4. Biological Evaluation (NOT AS SITE SPECIFIC, HOWEVER, PROJECT ACTIVITIES
MUST BE WELL DESCRIBED). Timing of project may be based on the USFWS’s
or Tribal FW’s conditions of compliance.
5. Floodplain maps (if available).

10. Legal Survey
 Conducted by a licensed surveyor
 Legal survey usually encompasses the project boundaries and nearby
features (utility lines, other property boundaries, roads and their ROWs)
 The project boundaries/area can be considered the “area of potential
affect” (APE)/”project footprint” for impact analysis
 Ensure the legal description is correct (double-check Township, Range,
and Sections/Lots)
 Many aspects of the project rely on having accurate legal descriptions, such as
cultural and biological surveys, environmental review documents, and FONSIs.

11. Project Description
1. Project Sponsor should have a clear and concise project description before they request a
proposal or quote from an environmental consultant.
2. Consultant cannot go to the field without knowing the project boundaries. Either:
a. Provide a legal survey plat;
b. Provide a legal description and GPS coordinates;
c. Or, take the consultant to the field and show them project boundaries to create new GPS coordinates
3. If the project scope changes perhaps to include an access road, utility lines, staging area,
etc., expect a request for change order from your environmental consultant.
4. Be aware that project may change due to environmental issues. Changes may happen to:
a. The project description
b. The project alignment (requiring new legal survey)
c. Cultural resources (e.g., archaeological sites)

12. How to modify your project if you
encounter an archaeological site?
 Archaeological sites are abundant on Tribal land.
 If you encounter a site that can be protected under various
cultural resource protection laws, you typically have two
routes:
 Avoid the site (including a buffer area as identified by the
Tribal or State Historic Preservation Officer (SHPO/THPO))
 Avoid the site all-together
 Avoid impacting the site
 Conduct an Archaeological Data Recovery
 Mitigates impacts by exhausting all the site’s research potential
 Typically, the last resort due to high cost

13. Cultural Resources Affecting Projects
(Real Life Example)
1. Client is constructing a waterline and storage tank.
Cultural surveys include alignment and proposed
ROWs with additional 50 feet buffer zone.
2. Cultural Resources Inventory identifies any
archaeological or historical site that is eligible for
protection.
3. THPO/SHPO recommends a 50 feet avoidance buffer
to protect archaeological or historical site.
4. Client shifts proposed ROW by 5 feet in order to
avoid the archaeological site, but stay within the
original survey area in order to avoid the need for
further surveying.

14. Environmental Site
Assessments
PHASE I, PHASE II, AND PHASE III

15. Environmental Site Assessment
(CERCLA/SARA)
 CERCLA/Superfund and Superfund Amendments and Reauthorization Act (SARA) hold
landowners liable for cleanup of hazardous waste on their property. Environmental Site
Assessments (ESA) are conducted as due diligence in property acquisition. New property owners
may be held liable for clean-up of environmental contamination discovered after a sale under the
 There are three types of “ESAs”
 Phase I ESA
 Identifies existing or potential environmental hazards
 Identifies resources with natural, cultural, recreational, or scientific values of a special significance
 Recommend whether further investigation is required.
 Phase II ESA
 Sampling phase to determine if hazards are present and extent of contamination
 Phase III ESA
 Remediation and Abatement phase

16. Phase I ESA: Components
A. Site Visit
 Inspection of the Site
 Catalog the Presence of
Hazardous Materials
 Catalog the Presence
of Petroleum Products
B. Historical Research
 Historical Aerial Photographs
 Reverse Street Directories
 Building Permits
 Planning Records
 Topographical Maps
 Sanborn Fire Insurance Maps
 Department of Oil and Gas Maps
 Title Information

17. Phase I ESA: Components
C. Geology and
Hydrogeology
 Soil Type
 Geological Setting
 Groundwater Depth
D. Regulatory Research
 Fire Departments
 State Environmental Agencies
 Federal Environmental
Agencies
E. Interviews and
Document Review
 Interview Tenants and Owners
 Interview State and Local
Regulators
 Review Provided Reports

18. Phase II ESA: Overview
 If the Phase I identifies potential contamination of the site by hazardous
materials, a Phase II ESA may be conducted.
 Includes sampling and laboratory analysis to confirm the presence of
hazardous materials. Some tests may include:
 Surficial soil and water samples
 Subsurface soil borings
 Groundwater monitoring well installation, sampling, and analysis
 Drum sampling (if any present)
 Sampling of dry wells, floor drains, and catch basins
 Transformer/capacitator sampling for PCBs
 Geophysical testing for buried tanks and drums
 UST testing

19. Phase III: Overview
 Phase III ESA is considered the remediation phase whereby the
“types and extents” of onsite environmental impairment has
been confirmed and abatement plans or scope of work for site
abatement has been prepared.
 Phase II and III ESAs are not conducted by novices; they are
intensive and expensive evaluations.

20. About Us
 ETD Inc. is brightening the future for Native American communities through
the services we provide. We are a team of professional planners, project
managers and communicators who solve technical problems for clients in
Indian Country.
 In 1995, our company was founded to navigate the tribal and federal
environmental regulations to ensure the appropriate level of compliance
associated with land development and the National Environmental Policy Act
(NEPA). Since then, we have grown to provide additional services to help solve
a range of problems in Indian Country. Today our services include: strategic
communication, project management, environmental planning.
 Visit us online at www.etd-inc.com!

21. Thank you!
 Kristin Miller
Project Manager/Environmental Scientist
kmiller@etd-inc.com
(928) 779-6032
 Eunice Tso
Sr. Project Manager/NEPA Specialist
eunicet@etd-inc.com
(928) 779-6032