GM 12-104

BIA Adopts Categorical Exclusion for Homesites

On August 10, 2012, the Department of the Interior revised its procedures for implementing the National Environmental Policy Act (NEPA) by adopting a new categorical exclusion for actions by the Bureau of Indian Affairs (BIA) associated with leasing and/or constructing single-family homes on Indian land. 77 Fed. Reg. 47864 (copy attached). The adoption of this categorical exclusion is intended to expedite compliance with NEPA for covered BIA actions by eliminating the need to prepare an environmental assessment, unless an extraordinary circumstance applies. For a discussion of the NEPA process and how categorical exclusions expedite compliance, see our General Memorandum 12-045 (March 23, 2012), which reported on the proposal to adopt this categorical exclusion.

As adopted, the wording of the categorical exclusion was revised somewhat, in response to comments filed by one of our tribal clients. The final wording is as follows:

“Approvals of leases, easements, or funds for single-family homesites and associated improvements, including, but not limited to, construction of homes, outbuildings, access roads, and utility lines, which encompass five acres or less of contiguous lands, provided that such sites and associated improvements do not adversely affect any tribal cultural resources or historic properties and are in compliance with applicable Federal and tribal laws. Home construction may include up to four dwelling units, whether in a single building or up to four separate buildings.”

As we noted in General Memorandum 12-045, there may well be other categories of BIA actions that should be added to the list of categorical exclusions. Any such suggestions should be brought to the attention of BIA.

If you would like further information regarding the categorical exclusions, please let us know.