4.07.050 Environmental Review

(a) Draft Environmental Review Statement

(1) Except in the case of categorical exclusions, the Director shall prepare a draft environmental review statement in connection with each proposed Right-of-Way or service line agreement, which statement shall include:

(A) statement of the purposes for which the right-of-way or Service Line Agreement is sought;

(B) a description of the physical environmental conditions in the vicinity of the property affected;

(C) a description of all significant short-term and long-term effects, including specific identification of any significant effect that cannot be avoided and any significant effect that would be irreversible if the application were approved;

(D) recommendations, where appropriate, of conditions that should be placed on the applicant's activity to minimize and mitigate detrimental effects and statements of whether the conditions are needed to avoid significant detrimental effects;

(E) the Director's determination whether the proposed activity will create significant detrimental effects after the inclusion of the recommended avoidance, minimization, and mitigation measures; and

(F) in the event of a finding of no significant detrimental effects, the Director's reasons for such finding.

(2) In determining whether an effect is significant, the Director shall consider both local and broader impacts of the proposed activity and the intensity of the activity, taking into account:

(A) the potential impact on public health or safety;

(B) the potential impact on sites that are sacred or of cultural significance to the Tribe;

(C) the potential impact on sites used by Tribal Members for hunting, fishing, gathering, cultural practices, religious activities or recreation;

(D) the unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wild rice waters, wild and scenic rivers, ecologically critical areas, Outstanding Tribal Resource Waters, Wetland of International Importance, Sites of International Importance (Ramsar Site) and North American Wetland Conservation Act (NAWCA) lands;

(E) whether the proposed activity is related to other actions with individually insignificant but cumulatively significant impacts;

(F) the potential impact on sites, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, archeological, cultural, or historical resources;

(G) the potential impact on endangered or threatened species or their habitat that has been determined to be critical under Tribe law or under the federal Endangered Species Act;

(H) whether the action may violate federal or Tribal Environmental Laws;

(I) the potential impact on air quality;

(J) the potential impact on water resources, including surface and ground water, water quality, water quantity, water uses and rights, fisheries, floodplains and/or wetlands;

(K) the potential impact on biological resources, including wildlife, vegetation, ecosystems and biological communities;

(L) the potential impact on visual resources, scenic views, and wilderness values;

(M) potential generation of excessive noise, vibrations, light, or glare; and

(N) potential impact on transportation networks.

(3) The Director may adopt as a Tribal environmental review statement an environmental review prepared in accordance with the National Environmental Policy Act by another agency, entity, or person, provided that-

(A) the Director supplements such environment review with an evaluation of effects under Tribal Environmental Laws; and

(B) the public comment and response requirements of this section are substantially complied with.

(b) Categorical Exclusions

(1) Except as provided in subsection (c), the approval of the following categories are excluded from the environmental review requirement:

(A) There is an earlier environmental review statement and finding of no significant impact prepared not more than twenty-four months earlier for a substantially identical right – of — way related activity on the same site.

(B) single family home sites, including up to four dwelling units in a single or separate buildings, and associated Improvements, including, but not limited to, construction of homes, outbuildings, access roads, and utility lines, provided (i) the activity encompasses five acres or less of contiguous lands and (ii) 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.

(D) Up to two acres for ground-mounted solar facilities that do not involve removal of a substantial number of healthy trees that are mature or scenic and provided such facilities do not adversely affect Tribal cultural resources or historic properties;

(E) operation, repair, maintenance or minor alteration of existing structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of entering into the propose agreement, e.g., (i) alterations of interior partitions, plumbing, electrical conveyances, or gutters; (ii) restoration or rehabilitation of deteriorated or damaged structures, facilities, or mechanical equipment; (iii) demolition and removal of small structures; and (iv) minor repairs;

(F) Replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same size, purpose and capacity as the structure replaced;

(G) Construction of a limited number of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the construction or placement of minor accessory (appurtenant) structures such as small above-ground utility facilities shelters, on-premises signs, small parking lots, and fences, provided such facilities do not adversely affect Tribal cultural resources or historic properties;

(H) Minor alterations in the condition of land and/or vegetation which do not involve removal of a substantial number of healthy trees that are mature or scenic, such as (i) grading on land with a slope of less than 10 percent, (ii) landscaping installation and maintenance, (iii) filling of earth into previously excavated land with material compatible with the natural features of the site, and (iv) minor trenching and backfilling where the surface is restored;

(I) Minor additions to existing buildings or other structures where the addition does not increase the original size by more than 25% and provided such actions do not adversely affect Tribal cultural resources or historic properties;

(J) Cleanup actions taken under the supervision of the Tribe to avoid, minimize, stabilize, mitigate, or eliminate the release or threat of release of an existing hazardous waste or substance;

(K) Activity that does not involve changes in the use of land and that is aligned with tribal interest;

(L) Rights-of-Way inside another right-of-way, or amendments to rights-of-way where no deviations from or additions to the original right-of-way are involved and where there is an existing NEPA analysis covering the same or similar impacts in the right-of-way area;

(M) Service line agreements to an individual residence, building or well from an existing facility where installation will involve no q clearance of vegetation from the right-of-way other than for placement of poles, signs (including highway signs), or buried power/cable lines; and

(N) Renewals, assignments and conversions of existing rights-of-way or service lines where there would be essentially no change in use and continuation would not lead to environmental degradation.

(2) The Realty Officer and the Director must concur, in writing, that a proposed Right-of-Way or Service Line Agreement qualifies for a categorical exclusion.

(3) Exceptions to Exclusions

(A) Notwithstanding the categorical exclusions listed in subsection (a), the Director shall prepare an environmental review statement if he or she has reason to believe that approval of the proposed Right-of- Way or service Line would adversely impact the interests addressed under this section.A.2.

(B) Notwithstanding the categorical exclusions listed in subsection (a), the Tribal Council may, at its discretion, direct that an environmental review statement be prepared.

A notice of availability of the draft environmental review statement shall be published in a manner calculated to reach the Public, following Section 1 - Chapter 1.01 - General Provisions - Section 101.6 - Administrative Procedure: Notice of Intent to Adopt a Code or Availability of Draft Environmental Review Statement Ordinance, Section.

(d) Final environmental review statement

(1) After the expiration of the comment period, the Director shall:

(A) prepare a written response to all relevant and substantive public comments, which response may address similar comments jointly;

(B) make such revisions to the draft environmental review statement as may be warranted based on public comments;

(D) post the final environmental review statement on the Tribe's public website; and

(E) forward copies of the final environmental review statement to the Realty Officer and the Tribal Attorney.

(2) The Director may make a recommendation whether the potential significant detrimental effects of the activity under the proposed Right-of- Way Agreement or Service Line Agreement justify denial of the application.

(3) In cases in which no environmental review statement is required, the Director shall provide a report stating the reasons and, in addition, providing the Director's comments and recommendations, if any, on the application under consideration