Tribal Consultation:

Additional Federal Actions Needed for Infrastructure Projects

GAO-19-22: Published: Mar 20, 2019. Publicly Released: Apr 19, 2019.

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Contact:

Anne-Marie Fennell
(202) 512-3841
fennella@gao.gov

 

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Federal agencies are required, at times, to consult with tribes on infrastructure projects like pipelines that may harm tribal natural and cultural resources.

According to tribal and agency officials, there are several factors making these consultations less effective. For example:

Some tribal representatives held the view that agencies did not consider their input and that consultations started too late.

Agencies reported difficulty obtaining the contact information needed to start consulting and other challenges.

Our recommendations included developing a government-wide system to identify and notify tribes of consultations.

 

Windmill project

Windmill project

Additional Materials:

Contact:

Anne-Marie Fennell
(202) 512-3841
fennella@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

Based on interviews with officials from 57 tribes and 21 federal agencies, as well as comments submitted by 100 tribes in 2016 on tribal consultation for infrastructure projects, GAO identified key factors that tribes and agencies believe hinder effective consultation on infrastructure projects.

Some of the key factors identified by tribes included

agencies initiating consultation late in project development stages,

agencies not adequately considering tribal input when making decisions about proposed infrastructure projects, and

agencies not respecting tribal sovereignty or the government-to-government relationship between federally recognized tribes and the federal government.

Some of the key factors identified by the agencies included

challenges in obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities;

agency resource constraints to effectively support consultation; and

difficulties coordinating with other federal agencies when there are multiple agencies involved in particular infrastructure projects.

The 21 agencies in GAO's review have taken some steps to facilitate tribal consultation, but the extent to which these steps have been taken varied by agency. For example, GAO found the following:

Three agencies have developed systems to help identify tribes that should be consulted on infrastructure projects, and 18 agencies have developed systems to help notify tribes of consultation opportunities. For instance, the Department of Housing and Urban Development developed a system that aims to identify over 500 tribes' geographic areas of interest and includes their contact information.

The Federal Permitting Improvement Steering Council (FPISC)—which was created to make the process for federal approval for certain (large) infrastructure projects more efficient—recommended in its fiscal year 2018 best practices report the development of a central federal information system of tribal areas of interest and points of contact for consultation. In July 2018, the Department of Housing and Urban Development submitted a proposal to the FPISC to expand the department's system in response to the FPISC recommendation. Although the FPISC has discussed the proposal, as of October 2018 it had not yet decided whether and how to respond to it. If the FPISC decides to move forward and develop a centralized system, a plan with well-defined goals and clear roles and responsibilities, among other things, will provide greater assurance that a centralized system will be implemented in accordance with successful practices for developing government websites.

Five agencies' tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered, but 16 agencies do not call for such communication in their policies.


Why GAO Did This Study

Federal agencies are required in certain circumstances to consult with tribes on infrastructure projects and other activities, such as permitting natural gas pipelines, which may affect tribal natural and cultural resources. GAO was asked to review federal agencies' processes for consulting with tribes on infrastructure.

This report examines, among other things, key factors tribes and selected federal agencies identified that hinder effective consultation on infrastructure projects and steps agencies have taken to facilitate tribal consultation. GAO examined laws, regulations, and policies and interviewed officials from 21 federal agencies that are generally members of the FPISC. GAO also summarized comments that 100 tribes submitted to federal agencies in 2016 to provide input on tribal consultation for infrastructure projects and interviewed available officials from 57 tribes and eight tribal organizations. Tribal and agency views are not generalizable.

What GAO Recommends

GAO is making one matter for congressional consideration and 22 specific recommendations to 17 of 21 agencies and the FPISC on actions they can take to improve tribal consultation, including that the FPISC develop a plan for establishing a central federal information system and that agencies establish or update their policies to better communicate their consideration of tribal input. The agencies to which GAO made recommendations generally agreed with them.

For more information, contact Anne-Marie Fennell at (202) 512-3841 or fennella@gao.gov.

Matter for Congressional Consideration

  1. Status: Open

    Comments: When we determine what steps the Congress has taken, we will provide updated information.

    Matter: Congress should consider taking legislative action to resolve the long-standing issues between the Corps and the Advisory Council on Historic Preservation over the Corps Regulatory Program's procedures for implementing section 106 of the National Historic Preservation Act. (Matter for Consideration 1)

Recommendations for Executive Action

  1. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Energy should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with Alaska Native Corporations (ANC) on the same basis as Indian tribes under Executive Order 13175. (Recommendation 1)

    Agency Affected: Department of Energy

  2. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Administrator of the Environmental Protection Agency should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 2)

    Agency Affected: Environmental Protection Agency

  3. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Housing and Urban Development should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 3)

    Agency Affected: Department of Housing and Urban Development

  4. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director of the Fish and Wildlife Service should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 4)

    Agency Affected: Department of the Interior: United States Fish and Wildlife Service

  5. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Homeland Security should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 5)

    Agency Affected: Department of Homeland Security

  6. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Assistant to the Secretary of Agriculture for Rural Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on proposed infrastructure projects. (Recommendation 6)

    Agency Affected: Department of Agriculture: Rural Development

  7. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director of Civil Works of the Corps should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 7)

    Agency Affected: Department of Defense: Department of the Army: Corps of Engineers: Civil Works

  8. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director for the Bureau of Ocean Energy Management should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 8)

    Agency Affected: Department of the Interior: Bureau of Ocean Energy Management

  9. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Commissioner of the Bureau of Reclamation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 9)

    Agency Affected: Department of the Interior: Bureau of Reclamation

  10. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Energy should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 10)

    Agency Affected: Department of Energy

  11. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman of the Federal Communications Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 11)

    Agency Affected: Federal Communications Commission

  12. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Administrator of the Federal Emergency Management Agency should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 12)

    Agency Affected: Department of Homeland Security: Directorate of Emergency Preparedness and Response: Federal Emergency Management Agency

  13. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman of the Federal Energy Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 13)

    Agency Affected: Federal Energy Regulatory Commission

  14. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Administrator of the Federal Highway Administration should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 14)

    Agency Affected: Department of Transportation: Federal Highway Administration

  15. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director of the Fish and Wildlife Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 15)

    Agency Affected: Department of the Interior: United States Fish and Wildlife Service

  16. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Homeland Security should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 16)

    Agency Affected: Department of Homeland Security

  17. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Housing and Urban Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 17)

    Agency Affected: Department of Housing and Urban Development

  18. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director for the National Park Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 18)

    Agency Affected: Department of the Interior: National Park Service

  19. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman of the Nuclear Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 19)

    Agency Affected: Nuclear Regulatory Commission

  20. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Transportation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 20)

    Agency Affected: Department of Transportation

  21. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to develop a plan to establish a central information system for identifying and notifying tribes that includes (1) well-defined goals for the system, (2) specifies FPISC members' roles and responsibilities for establishing and maintaining the system given existing statutory authority, and (3) identifies resources required for developing and maintaining the system. (Recommendation 21)

    Agency Affected: General Services Administration: Federal Permitting Improvement Steering Council

  22. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: As a central information system is established, the Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to consider how they will communicate with and involve tribes to help maintain accurate tribal data in the system. (Recommendation 22)

    Agency Affected: General Services Administration: Federal Permitting Improvement Steering Council

 

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