Environment - Tribal

WSDOT Model Comprehensive Tribal Consultation Process for the National Environmental Policy Act (NEPA)

Introduction

The Washington State Department of Transportation (WSDOT) maintains government-to-government relations with 34 federally recognized tribal governments. Twenty-nine tribes are located in Washington State; the additional five tribes have reservations outside the state, but have traditional homelands and / or treaty rights within the state.

WSDOT project teams comply with a number of federal, state and tribal consultation requirements including, but not limited to the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), the Centennial Accord between the Federally Recognized Tribes in Washington State, the New Millennium Agreement, WSDOT Executive Order 1025.00 on Tribal Consultation, and the WSDOT Centennial Accord Plan. Project teams also consider the effects projects may have on tribal treaty rights. See Chapter 2 for a more in depth description of these consultation requirements.

While each of these laws and policies have distinct requirements, the consultation process to address tribal natural and cultural resource issues is largely conducted under the broader NEPA umbrella. Successful consultation helps WSDOT achieve its mission to deliver transportation projects on time and on budget.

This consultation model was created to guide WSDOT project teams to use on federal-aid transportation projects in which the Federal Highway Administration (FHWA) is the lead federal agency. 

Please read the directional memo from WSDOT Secretary Paula Hammond and FHWA Divisional Administrator Daniel Mathis.

Process Contents

Chapter 2   Why consult?  Goals and principals on consultation, brief 
                description of major legal and policy foundations of 
                consultation.

Chapter 3   Consultation Activities. This chapter focuses on when 
                to consult with tribes. It includes a list of recommended 
                consultation activities for projects, based on their 
                environmental classification (CE, DCE, EA, EIS). In 
                essence, it outlines the minimum level of consultation 
                opportunities WSDOT project teams should provide for 
                tribes on their projects.

Chapter 4    Frequently Asked Questions. This chapter focuses on how 
                to consult with tribes. The guidance is grouped into nine 
                themes: 
                • Initiating consultation 
                • Comprehensive consultation 
                • Treaty rights 
                • Cultural resources 
                • Intertribal relations 
                • Resolving tribal concerns 
                • Tribal compensation 
                • Permitting 
                • Resources to help you

Appendix A:    NEPA Summary
Appendix B:    U&A Summary from the Attorney General's Office
Appendix C:    Sample consultation letter for Documented
                    Categorical Exclusion (including Section
                    106 and Area of Potential Effects comments) 
Appendix D:    Sample consultation letter for Environmental
                    Assessment (includes Section 106) 
Appendix E:    Sample consultation letter for Environmental 
                    Impact Statements (includes Participating agency 
                    invitation and Section 106)
Appendix F:    Tribal response card 
Appendix G:    Sample Tribal consultation Plan 
Appendix H:    Tribal consultation agreements 
Appendix I:     Individual Tribal protocols 
Appendix J:     Consultation tracking form
Appendix K:     ACHP letter on consultation
Appendix L:     Sample service agreements
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Acknowledgements

What's NOT included in this guidance?

• Governor’s Executive Order 05-05 on Archaeological and Cultural Resources
• Consultation process for projects for which FHWA is NOT the federal lead, including Federal Transit Administration (FTA), Federal Aviation Administration (FAA) and Federal Rail Administration (FRA)
• Consultation process for State Environmental Policy Act (SEPA) only projects.
• Non-tribal related compliance requirements for NEPA, Section 106 of the National Historic Preservation Act, and other federal laws. top

Who is this guidance for?

• WSDOT staff and consultants who work on projects requiring NEPA review and have FHWA as the lead federal agency, including any federally funded local agency transportation projects administered through the Highways and Local Programs Office.
• WSDOT policy staff and others who work on projects before and after the environmental review stage. top

What is tribal consultation and with whom do we consult?

Each law and executive order defines tribal consultation a little differently even though the principles of consultation are virtually the same. The WSDOT Executive Order 1025.00 on Tribal Consultation defines it as “respectful, effective communication in a cooperative process that works towards a consensus, before a decision is made or action is taken.”

The Implementation Guidelines for the New Millennium Agreement states that consultation requires an enhanced form of communication between parties that emphasizes trust and respect. It requires a shared responsibility that allows an open and free exchange of information and opinions among parties that leads to mutual understanding. Consultation with tribal governments is an endeavor, which is uniquely a government-to-government process. In this government-to-government consultation process, the goal is to reach consensus and understanding during decision making. Consultation is undertaken with a desire to reach a mutually agreeable understanding and decisions that acknowledge the broad interests within the state, including the interests of both state and tribal governments. WSDOT will engage tribes in good-faith consultation, recognizing that agreement cannot always be reached.
 
In this document, we will generally refer to tribal governments as tribes, and their governing bodies as tribal councils. The leaders of these governing bodies will be referred to as chairs or chairpersons. However, it is important to recognize that tribes are independently organized and governed, and each has an official name for the tribe or community. These may include nomenclature such as Tribe, Tribes, Nation, Confederacy, or Indian Community. Most tribes have an elected body that makes decisions on behalf of the tribe. Examples include tribal councils, boards of directors, and tribal senates. Many tribes also have committees or commissions that have oversight or decision making authority over specific issues such as cultural resources or fishing issues. In many cases the members of the individual tribes comprise a body known as a general council or general membership that has oversight on certain council decisions. Even though we use general terms in this guidance, it is important for WSDOT project teams to observe the specific organization and terminology of the tribes they work with. top

Why and how did we create this guidance?

In recent years, WSDOT has diligently worked to improve its tribal consultation policies and procedures. In 2001, the Tribal Liaison Office was moved from a part time position in the planning office to an executive level position in the Government Relations Office. In 2003, WSDOT issued a Tribal Consultation Policy and implementing Centennial Accord Plan.

We created this guidance for a number of reasons. In 2004, the Washington State Legislature directed the Transportation Permit Efficiency and Accountability Committee (TPEAC), of which WSDOT was a member, to develop a “model NEPA tribal consultation process for federal transportation aid projects related to the preservation of cultural, historic, and environmental resources.” Although it is a critical piece of WSDOT’s decision making process, NEPA and its implementing regulations lack specific procedures on how to conduct consultation with Tribes. Furthermore, many WSDOT project teams experienced challenges when they attempted to consult with tribes and the need for additional guidance emerged. WSDOT also has a number of complex projects that necessitate innovative approaches to consultation.

WSDOT environmental and tribal liaison staff initiated a statewide effort to develop a tribal consultation process for NEPA. Beginning in April 2005, WSDOT met with the natural and cultural resource staff of 27 of the 29 federally recognized tribes in Washington. The purpose of these meetings was to discuss consultation protocols, identify gaps in the existing consultation process and gather suggestions from the tribes on how to improve consultation.
We created this NEPA consultation process and guidance based on those suggestions and the experiences of WSDOT staff on projects. In addition to staff suggestions, this process incorporates previously developed guidance in the Centennial Accord Plan, Millennium Agreement and Implementation Guidelines and the Washington State Ferries Tribal Handbook, among others. top

Acknowledgements

WSDOT and FWHA gratefully acknowledge the contributions of tribal, federal and WSDOT staff for their consultation and guidance in the development of this model.