Environment - Tribal

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Tribal Consultation - Chapter 3 Activities

When to Consult with Tribes During Project Level Environmental Review

In this chapter, we will describe project-level comprehensive consultation activities for each type of project classification under the National Environmental Policy Act (NEPA):

Each section includes tribal consultation activities required under Section 106 of the National Historic Preservation Act and the Section 106 programmatic agreement between WSDOT, FHWA and the Department of Archaeology and Historic Preservation.

This section will focus on when to consult with tribes by identifying the tribal consultation activities in each type of NEPA classification. The chapter is divided by projects’ NEPA classification and includes a definition of the class, and a sequential list of consultation activities.

What is "comprehensive consultation"?
Comprehensive consultation means engaging all the affected tribal departments early, and on an ongoing basis throughout the life of the project.  It means more than complying with one statutory requirement to consult, such as on the Area of Potential Effect under Section 106 of the National Historic Preservation Act.
Some of these activities are already required by law, policy or procedures; others are new. Activities noted as Section 106 consultations are required by Section 106 or the Section 106 programmatic agreement between WSDOT, FHWA and DAHP. Unless otherwise noted, the other activities listed represent the minimum recommended consultation activities under each NEPA environmental classification.

Depending on the magnitude, potential impacts and unique circumstances of your project, you may need to engage in more intensive consultation with tribes.

Guidance on how to consult with tribes including how to identify which tribes and which tribal offices to consult with, protocols for initiating consultation and troubleshooting tips are located in the next chapter.

A few things to consider before you start:

Who should carry out these consultation activities?  

Generally, the consultation activities described in this chapter should be led by the project Environmental Manager or their Environmental Coordinator with whom they closely coordinate. Tribal meetings should include the environmental manager or other staff in charge of consultation. It is important for tribes to have a consistent contact for the project, regardless of the environmental issue. The WSDOT Tribal Liaisons are available to assist you as needed. toptop

What is FHWA’s role for these consultation activities?   

The Federal Highway Administration (FHWA) acts as the “lead agency” for projects being reviewed under NEPA and thus has the ultimate responsibility for tribal consultation under NEPA and Section 106 of the National Historic Preservation Act. FHWA approves the environmental classification of projects and WSDOT prepares environmental documents for FHWA’s approval. Generally, WSDOT will approve / adopt these documents for the Washington State Environmental Policy Act (SEPA).

WSDOT, on behalf of FHWA will initiate and assist FHWA in consultation on projects. A tribe may request in writing to consult with FHWA in lieu of or in addition to WSDOT, at which time FHWA will assume the primary role for consultation.

You must invite the appropriate FHWA Area Engineer to any meetings with tribes and copy them on any correspondence. toptop

Coordinating Section 106 and NEPA compliance  

The Section 106 regulations require you to coordinate Section 106 and NEPA. The tribal consultation process under Section 106 of the National Historic Preservation Act and the Section 106 programmatic agreement between WSDOT, FHWA and DAHP, requires, at a minimum, the following activities:

  • Initiate consultation
  • Consult with tribes to determine the existence of historic properties including Traditional Cultural Properties (TCPs)
  • Consult on the Area of Potential Effects (APE)
  • Consult on the Cultural Resources Discipline Report and findings of effect
  • If there is an adverse affect to a register eligible historic property, you must invite the tribes to consult on the Memorandum of Agreement (MOA)
  • For further guidance on the Section 106 process WSDOT follows, contact the WSDOT Cultural Resources Office. toptop

Program and multiproject level consultation  

WSDOT engages tribes in various types of program-level and multi-project consultation activities. For example, each year, or more often as needed, each WSDOT region will host meetings with interested tribes to discuss Section 106 compliance on projects. Another example is the WSDOT Mount Baker Office’s annual meetings with local tribes to discuss long-range planning studies and multiple projects. Program and multi-project consultation can help build strong working relationships and aid consultation efforts on individual projects. While this work is very important, this chapter focuses on individual project consultation. toptop

Categorical Exclusions (CE)  

The Council on Environmental Quality (CEQ) regulations define a Categorical Exclusion as “actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in adoption of these procedures (Section 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 CFR 1508.4

FHWA further defines a Categorical Exclusion as,
“actions which: do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.” 23 CFR 771.117

What are some project examples of NEPA CE?
Landscaping; Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices; Construction of bicycle and pedestrian lanes, paths, and facilities. See 23 CFR 771.

Though this classification of projects often does not have a significant impact on many environmental resources, they can still impact tribal cultural and treaty resources. For example, if you install a fence that blocks the access of tribal fishers to their Usual and Accustomed Fishing Grounds, you would be affecting their treaty rights.

Other projects, may also qualify as CEs if appropriately analyzed, documented, and approved by FHWA. These are identified in 23 CFR 771.117(d). WSDOT refers to these types of projects as “Documented Categorical Exclusions” (DCE). The WSDOT Environmental Procedures Manual states that a project normally classified as a CE under 23 CFR 771.1179(c), would be classified as a DCE when the following apply:

  • Any federal lands are affected or impacted.
  • A federal Corps of Engineers Section 10 or Section 404 (Nationwide or Individual) permit is required.
  • Substantial or uncertain impact may occur on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act.
  • Possible impact on habitat or species protected under the Endangered Specific Act (ESA).

For a DCE, the federal agency with jurisdiction over the permit or approval will also engage the tribes in consultation. For example, WSDOT, on behalf of FHWA, will initiate consultation on Section 106 and the Army Corps of Engineers will consult for Section 10 or 404 permits under the Rivers and Harbors Act. toptop

What are the recommended tribal consultation activities for a project classified as a NEPA Categorical Exclusion?

  • On an annual basis, or more often as appropriate, each region should send the tribes a list and map of categorical exclusions in the region. Tribes can then notify the region if they have any concerns with any of the CE projects. Regions may expand their tribal outreach meeting(s) under the WSDOT Section 106 programmatic agreement to include discussion of these CE projects or what types of projects are classified as a CE.
  • You must comply with the Section 106 regulations and / or WSDOT’s Section Programmatic Agreement. If your project is not exempt under the Section 106 programmatic agreement, you must comply with all the required Section 106 consultation steps including: initiate consultation, consult on the APE, consult on the level of effort of analysis, cultural resources discipline report / survey and findings of affects, and on any adverse effects to historic properties. See Appendix C (doc 40 kb) for a sample NEPA DCE / Section 106 consultation letter. toptop  
 
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Environmental Assessments (EA)  

WSDOT prepares an Environmental Assessment (EA) when the significance of impacts of the transportation project is uncertain. If the analysis reveals that the project would cause significant impacts, an Environmental Impact Statement process would begin immediately. If FHWA determines that there will be no significant impacts a Finding of No Significant Impact (FONSI) will be prepared to conclude the process and document the decision. (40 CFR 1508.9, WSDOT Environmental Procedures Manual Ch. 411) toptop

What are the recommended tribal consultation activities for a project classified as an EA?

  • During your EA scoping, initiate NEPA and NHPA Section 106 consultation with affected tribes via letter. The letter should be addressed to the chairperson and copied to the cultural and natural resources departments. See Appendix D for a sample letter. Chapter 4 includes suggested content for your letter. For example, you should request information on the existence of historic properties including Traditional Cultural Properties (TCPs). See Appendix F (pdf 31 kb) for a response post card that can be attached to the consultation letter and provided to the tribal staff .
  • If the tribe has not responded within 30 days, you should
    follow up with a phone call and / or email.
    Why should we follow up with tribes if we don't receive a response?

    Many tribal governments do not have the administrative capacity to respond to all the consultation requests they receive within the proposed timeframe. By following up with tribal staff, you can better determine if they are interested in your project, if they intend to submit comments and when they are able to do so. You should never assume that a lack of tribal response to your request indicates a lack of interest in your project.

    Early conflict identification and resolution reduces future risks to the project (e.g. scope, schedule, and budget overruns).
  • We recommend you create a tribal consultation plan for your project, especially if it has the potential to affect resources of interest to tribes. See Appendix G (doc 791 kb) for an example. This plan should include major consultation milestones, frequency of regular meetings, how you plan to coordinate consultation across disciplines (i.e. natural resources and cultural resources). You should share your plan with the tribes and edit as necessary. A goal of this plan is to establish common expectations for the consultation process on your project.
  • Invite affected tribes to any agency scoping meetings (if held).
  • Your project team is encouraged to meet with the natural and cultural resources staff of any affected tribes at least once during the project, preferably during environmental scoping.
    You should schedule meetings at tribal offices whenever possible. Depending on the magnitude and unique circumstances of your project, you may need to meet with the affected tribes more often. For example, you may want to
    Don't Forget!

    The Section 106 Programmatic agreement requires you to courtesy invite FHWA and DAHP to any Section 106 consultation meetings you have with tribe(s). Provide them with a copy of the meeting notes if they cannot attend the meeting. Contact the WSDOT Cultural Resources Office for a template email you can use to invite them.
    meet with the affected tribes at each of the major NEPA milestones for your project.
  • In accordance with Section 106 regulations and / or WSDOT’s Section 106 Programmatic Agreement, you must send the tribal cultural resources staff contact(s) a letter describing and requesting comment on the project’s Area of Potential Effects (APE) for cultural resources. This is a consultation activity specific to the National Historic Preservation Act and occurs before a cultural resources survey can be prepared. Visit the WSDOT cultural resources website for a template letter.
  • Tribes will have 30 days to comment on the cultural resources APE. If the tribe does not respond within 30 days, you should follow up with a phone call and / or email
  • You should send a list of environmental discipline reports or technical memos you expect to prepare for the project to the natural and cultural resource staff at the affected tribes. This will help you determine if the tribe is interested in providing information or expertise in the development of any these reports. This is also a good time to consult with tribal cultural resources offices on the level of effort to be used in the identification of historic properties as required by the Section 106 implementing regulations (36 CFR 800.4).
  • You should consult with the tribes on the Preliminary EA / Draft EA including completed discipline
    reports. For Section 106 compliance, you must send a copy of
    Can you share draft discipline reports with tribes?

    Yes, as long as the reports have been reviewed by the appropriate WSDOT staff in accordance with WSDOT quality assurance and quality control policies. For example, cultural resource discipline reports must be reviewed by a WSDOT cultural resource specialist.
    the Cultural Resources Discipline report and Determinations of Effect to the tribe. You may also send them a copy of a Biological Assessment prepared for the Endangered Species Act (ESA) once the assessment is sent to the US Fish and Wildlife Service (USFWS) and National Oceanic Atmospheric Administration (NOAA) for consultation. Keep in mind that USFWS and NOAA also have a legal responsibility for tribal consultation under ESA.
  • If the tribe has not responded to your request for comments on the EA within 30 days, you should follow up with a phone call, email etc. Remember, your goal is to identify any concerns and issues the tribes may have as early as possible.
  • If your project will have an adverse effect on a register eligible historic resource, you must invite the tribe(s) to consult on the Memorandum of Agreement, as required by Section 106 regulations and / or WSDOT’s Section 106 programmatic agreement.
  • Send the tribe a copy of the published EA.
  • If a tribe has been actively consulting on your project, you should follow up with them after 30 days to ensure that there are not any remaining issues on the EA that could resurface during permitting.
  • FHWA / WSDOT will send the tribe a copy of the Finding of No Significant Impact (FONSI). If significant issues remain, FHWA will publish a Notice of Intent (NOI) to prepare an Environmental Impact Statement. toptop
 
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Environmental Impact Statements (EIS)  

NEPA requires Federal agencies to prepare environmental impact statements (EIS) for major federal actions that significantly affect the quality of the human and natural environment. (40 CFR 1501, WSDOT Environmental Procedures Manual Ch. 411). toptop

What are the recommended consultation activities for projects classified as an EIS?

  • During environmental scoping for the project, initiate NEPA and NHPA Section 106 consultation with the affected tribe(s) by sending a letter to the chairperson with copies to the natural and cultural resources departments. You may use this letter to invite the tribes to be a “Participating Agency” under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). See Appendix E for a sample letter. Chapter 4 includes suggested content for your letter. See Appendix F (pdf 31 kb) for a response card that can be attached to the consultation letter and provided to the tribal staff.
  • Create a tribal consultation plan for that project. This can be a special section within your broader agency coordination / public involvement plan or a separate plan. See Appendix G (doc 791 kb) for a sample plan. The plan should include major consultation milestones, frequency of regular meetings, how you plan to coordinate consultation across disciplines (i.e. natural resources and cultural resources). Share your plan with the tribes and edit as necessary. A goal of this plan is to establish common expectations for the consultation process on your project.
  • Invite tribal natural and cultural resources staff to agency scoping meetings.
  • You should meet with the natural and cultural resources staff of any affected tribes at least once during the project, preferably during environmental scoping. You should schedule meetings at the tribal offices whenever possible. Depending on the magnitude and unique circumstances of your project, you may need to meet with the affected tribes more often. For example, you may want to meet with the affected tribes at each of the major NEPA milestones for your project.
  • We recommend you follow up with tribes to encourage them to accept Participating Agency Status. This formally invites them to comment on project’s Purpose and Need, the Range of Alternatives, and methods for analysis for the project.
  • In accordance with Section 106 regulations and / or WSDOT’s Section Programmatic Agreement, you must send the tribal cultural resources staff contact(s) a letter describing and requesting comment on the project’s Area of Potential Effects (APE) for cultural resources. This is a consultation activity specific to the National Historic Preservation Act and occurs before a cultural resources survey can be prepared. Visit the WSDOT cultural resources website for a template letter.
  • Tribes have 30 days to comment on the APE. If the tribe does not respond within 30 days, you should to follow up with the cultural resources staff with a phone call and / or email.
  • You should send a list of environmental discipline reports or technical memos you expect to prepare for the project to the natural and cultural resource staff at the affected tribes. This will help you determine if the tribe is interested in providing information or expertise in the development of any these reports. This is also a good time to consult with tribal cultural resource offices on the level of effort to be used in the Identification of historic properties as required by Section 106 implementing regulations (36 CFR 800.4)
  • Send the Draft Environmental Impact Statement (DEIS) with completed discipline reports to the tribe for review and comment. For Section 106 compliance, you must send a copy of the Cultural Resources Discipline Report / Survey and Determinations of Effect to the tribe. You may also send them a copy of Biological Assessment prepared for Endangered Species Act (ESA) once the assessment is sent to the US Fish and Wildlife Service (USFWS) and National Oceanic Atmospheric Administration (NOAA) for consultation. Keep in mind that USFWS and NOAA also have a legal responsibility for tribal consultation under ESA.
  • Your goal is to identify any concerns and issues the tribes may have as early as possible. If they have not responded to your request for comments on the DEIS or discipline reports within 60 days, you should follow up with a phone call, email etc.
  • If your project will have an adverse effect on a register eligible historic resource, you must invite the tribes to consult on the Memorandum of Agreement, as required by Section 106 regulations and / or WSDOT’s Section 106 programmatic agreement.
  • You should send the tribes the Preliminary Final Environmental Impact Statement (PFEIS). This will give you an opportunity to identify any new or remaining tribal concerns that were not addressed in the DEIS.
  • If a tribe has been actively consulting on your project, you should follow up with the tribal staff after 30 days to ensure that there are not any remaining issues. If there are remaining issues, you can continue the consultation process and arrange for additional meetings.
  • Send Final Environmental Impact Statement to the tribe.
  • If a tribe has been actively consulting on your project, you should follow up with them after 30 days to ensure that there are not any remaining issues on the FEIS that could resurface during permitting.
  • FHWA / WSDOT will send the tribe a copy of the Record of Decision (ROD). toptop

   
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