1 Introduction

1.1 Purpose

To ensure National Indian Gaming Commission (NIGC) compliance with the 

requirements set forth in the Council on Environmental Quality (CEQ) regulations 

for implementing the provisions of the National Environmental Policy Act of 1969, 

as amended, (NEPA), 42 U.S.C. §§ 4321-4347, 40 Code of Federal Regulations 

(C.F.R.) parts 1500-1508 and other related statutes and directives, consistent with the 

Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 – 2721, and to assign 

responsibilities within the NIGC for the preparation, review, and approval of 

environmental documents prepared under NEPA. 

1.2 Definitions

1.2.1 Unless otherwise specified, the terminology used in the CEQ regulations (See

40 C.F.R. part 1508) is applicable.

1.2.2 Environmental Impact Statement (EIS): An environmental document prepared 

according to the requirements of CEQ regulations for a major federal action that 

will have a significant effect on the quality of the human environment.

1.2.3 Environmental Assessment (EA): A concise document prepared according to the 

requirements of CEQ regulations that briefly provides sufficient evidence and 

analysis for determining whether to prepare an EIS. An EA aids compliance with 

NEPA when no EIS is necessary and facilitates preparation of an EIS when one is 

necessary.

1.2.4 Categorical Exclusion (CATEX): A published category of actions that do not 

individually or cumulatively have a significant impact on the human environment 

under normal circumstances, and, therefore, do not require either an environmental 

assessment or an environmental impact statement.

1.2.5 Record of Decision (ROD): An environmental document signed by the Chair of 

the NIGC. A ROD sets out a concise summary of the final decision and selected 

measures for mitigation (if any) of adverse environmental impacts of the alternative 

chosen from those considered in an EIS.

1.2.6 Finding of No Significant Impact (FONSI): A document that sets out the reasons 

why an action not otherwise categorically excluded will not have a significant 

impact on the human environment, and for which an EIS will not therefore be 

prepared. A FONSI will include the EA or a summary of it and shall note any other 

environmental documents related to it. A FONSI may be one result of review of an 

EA.

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1.2.7 Controversial: Meaning a substantial dispute exists as to the environmental 

consequences of the proposed action and does not refer to the mere existence of 

opposition to a proposed action. 

1.3 Policy

1.3.1 It is NIGC policy to: comply with the procedures and policies of NEPA and other 

related environmental laws, regulations, and orders applicable to NIGC actions;

1.3.2 Interpret and administer, to the fullest extent possible, the policies, regulations, and 

public laws of the United States administered by the NIGC, including IGRA, in 

accordance with sections 101 and 102 of NEPA;

1.3.3 Initiate the NEPA processes at the earliest possible time to be an effective decisionmaking tool, while cooperating and consulting with other federal, tribal, state and 

local organizations/departments/agencies when necessary;

1.3.4 Employ a systematic and interdisciplinary approach to NEPA compliance and 

documentation prior to taking a major federal action, including the development 

and assessment of reasonable alternatives to proposed actions that will avoid or 

minimize adverse effects upon the quality of the human environment while also 

achieving the purpose of the proposed action;

1.3.5 Ensure that compliance with NEPA includes public involvement during appropriate 

stages of the NEPA process. This includes public notice of NEPA related hearings, 

as well as soliciting appropriate information through comments; and

1.3.6 Identify actions that require no analysis or documentation under NEPA or its 

implementing regulations. 

1.4 Responsibilities 

1.4.1 NIGC Chair: The Chair shall approve and sign all NEPA decision documents. The 

Chair will also designate the responsible NIGC official for NEPA compliance

1.4.2 NIGC Office of General Counsel (OGC): The OGC shall be consulted on legal 

matters that arise during the preparation of any NEPA compliance document.

1.5 Applicability 

The provisions of this manual and CEQ regulations apply to major federal actions by 

the NIGC that may affect the quality of the human environment. These actions may 

be directly undertaken by the NIGC or where the NIGC has sufficient control and 

responsibility to condition approvals of a non-federal entity. The procedures in this 

manual shall apply to the fullest extent practicable to ongoing activities and

environmental documents begun before the effective date, except that this manual 

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does not apply to decisions made and draft or final environmental documents issued 

prior to the effective date of this manual.

2 Levels of NEPA review 

2.1 There are three (3) levels of NEPA review. The level of NEPA review will be dependent 

on the type and potential impacts of the action being taken. 

2.1.1 An action that “normally requires an environmental impact statement [EIS]” (40 

C.F.R. §1501.4(a)(1)).

2.1.1.1 An EIS is required when an EA has been done for a proposed action and the 

impacts of that action will exceed the applicable threshold of significance for any 

resource category and those impacts cannot be mitigated to a level below the 

threshold of significance. The threshold of significance for any resource 

category must be clearly identified within the EA. If the NIGC anticipates that 

significant impacts will result from a proposed action, it can elect to prepare an 

EIS without first developing an EA. The NIGC may issue its Record of Decision 

(ROD) 30 days following the EA’s publication in the Federal Register of the 

notice of availability of the Final EIS. The ROD represents the agency’s official 

decision on the proposed action. The ROD must include all appropriate 

mitigation measures, as discussed in the Final EIS.

2.1.2 An action that is subject to NEPA but does not qualify for a CATEX or warrant the 

preparation of an EIS requires the preparation of an EA. 

2.1.2.1 An EA is not required if the NIGC has elected to prepare an EIS on the proposed 

action. An EA is appropriate when the NIGC believes that impacts of the 

proposed action will not result in impacts that meet or exceed the threshold of 

significance for any impacted resource category. When an EA is prepared and it 

is determined that the proposed action’s impacts will not exceed the threshold of 

significance, the responsible NIGC official will prepare a FONSI to be issued by 

the NIGC Chairman. The FONSI is the official NIGC determination that the 

proposed action will not result in any significant impacts to the human 

environment. It does not represent the agency’s decision to implement or 

approve the proposed action.

2.1.2.2 For the purpose of avoiding delay and conserving tribal resources, the NIGC 

may adopt, in whole or in part, a draft or final EA or the EA portion of an 

EA/FONSI prepared for another federal, tribal, state or local 

agency/organization.

2.1.3 An action that “normally does not require either an environmental impact statement 

or an environmental assessment is categorically excluded” (40 C.F.R. 

§1501.4(a)(2)).

2.1.3.1 A CATEX identifies a group of actions that typically will not have a significant 

individual or cumulative impact on the human environment. Unless the 

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proposed action involves an extraordinary circumstance, an EIS or EA is not 

required.

3 Activities Not Subject to NEPA

3.1 There are some NIGC activities that for NEPA purposes do not meet the traditional 

meaning of “Federal actions” and therefore are not subject to NEPA review.

3.2 Advisory Actions: When the NIGC takes an action that is advisory in nature, the 

requirement to comply with NEPA does not apply. As a result, a CATEX, EA or EIS is 

not required. However, if the NIGC knows or anticipates that a subsequent federal 

action that is subject to NEPA might occur, it must point that fact out in the advisory 

action. The following are typical actions taken by the NIGC that are advisory in nature:

3.2.1 NIGC’s Office of General Counsel issuance of Indian Lands opinions;

3.2.2 NIGC’s Office of General Counsel issuance of game classification opinions;

3.2.3 NIGC’s Office of General Counsel issuance of advisory opinions regarding whether 

a contract is a management contract requiring the NIGC Chairman’s approval or 

violates IGRA’s sole proprietary interest requirement.

3.3 Enforcement Actions: The following NIGC actions are administrative enforcement 

actions that are not considered to be “Federal actions” and are not subject to review 

under NEPA (40 C.F.R. §1508.18(a)). As a result, a CATEX, EA or EIS is not required 

for the following actions:

3.3.1 Issuance of orders of temporary closure of gaming activities as provided in 

§2713(b) of IGRA;

3.3.2 Levying and collecting civil fines as provided in §2713(a) of IGRA;

3.3.3 Making permanent a temporary order of the NIGC Chairman closing a gaming 

activity as provided in §2713(b)(2) of IGRA;

3.3.4 Issuance of subpoenas pursuant to an enforcement action as authorized in §2715 of 

IGRA;

3.3.5 Holding such hearings, sit and act at such times and places, take such testimony, 

receive such evidence, and render such decisions as the Commission deems 

appropriate, when done pursuant to an enforcement action, as authorized in 

§2706(b)(8) of IGRA;

3.3.6 Administering oaths or affirmations to witnesses appearing before the Commission, 

when done pursuant to an enforcement action, as authorized in §2706(b)(9) of 

IGRA;

3.3.7 Issuance of warning letters, notices of violation, civil fine assessments, closure 

orders, or any other action consistent with the Commission’s authority to enforce 

IGRA, the NIGCs regulations, and approved tribal gaming ordinances.

3.4 Emergency Actions: In the event of an emergency situation, the NIGC may be required 

to take an action to prevent or reduce the risk to the environment, public health, or safety 

that may impact the human environment without evaluating those impacts under NEPA. 

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Upon learning of the emergency situation, the NIGC will immediately inform CEQ of 

the emergency situation when the proposed NIGC action is expected to result in 

significant impacts on the human environment. In some cases, the emergency action 

may be covered by an existing NEPA analysis or an exemption. In other cases, it may 

not be covered. In these cases, NIGC (in consultation with CEQ) will obtain guidance on 

NEPA compliance. NIGC will provide continued follow-up consultation with CEQ 

throughout the duration of the emergency situation. The provisions of this section do not 

apply to actions taken after the emergency situation has been resolved or those related to 

recovery operations. In cases where the NIGC proposed action is not expected to result in 

significant impacts on the human environment, NIGC shall ensure the appropriate NEPA 

documentation (CATEX or EA) is prepared following the actions required to control the 

emergency and before any follow-up actions are taken.

3.5 Statutory Conflict: In some cases, the NIGC’s statutory requirements are inconsistent 

with NEPA. The following NIGC action(s) have been determined to fit into this 

category:

3.5.1 Approval of tribal gaming ordinances or resolutions as provided in § 2710 of the 

IGRA, which must be completed within ninety (90) days of submission to the 

NIGC

4 Categorical Exclusions and Extraordinary Circumstances

4.1 Categorical Exclusion Screening 

The use of a CATEX can only be applied to an action if all of the following criteria 

are met:

4.1.1 The responsible NIGC official must determine that the NIGC action is encompassed 

by a listed CATEX.

4.1.2 The responsible NIGC official must determine that the action has not been 

segmented in order for the NIGC action to meet the definition of an action that can 

qualify for a CATEX. Segmentation occurs when an action is broken into smaller 

parts in an effort to avoid properly documenting impacts associated with the 

complete action. Segmentation also occurs when the NIGC action is too narrowly 

defined and the potential impacts are minimized in order to avoid a higher level of 

NEPA documentation. Connected and cumulative actions must be considered (See

40 C.F.R. §1508.25).

4.1.3 The responsible NIGC official must determine if the NIGC action will involve any 

of the extraordinary circumstances that would prevent the use of a CATEX.

4.2 Categorical Exclusions 

The NIGC, based on past experience with similar actions, has determined that the 

following types of actions are categorically excluded and do not require the 

preparation of an EA or EIS because they will not individually or cumulatively result 

in a significant impact on the human environment. These types of federal actions 

meet the criteria established in 40 C.F.R. §1508.4. 

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4.2.1 CATEGORY 1 - Administrative and Routine Office Activities:

A. Normal personnel, fiscal, and administrative activities involving personnel 

(recruiting, hiring, detailing, processing, paying, supervising and records 

keeping). 

B. Preparation of administrative or personnel-related studies, reports, or 

investigations.

C. Routine procurement of goods and services to support operations and existing 

infrastructure, including routine utility services and contracts, conducted in 

accordance with applicable procurement regulations, executive orders, and 

policies (e.g. Executive Order 13101).

D. Normal administrative office functions (record keeping; inspecting, 

examining, and auditing papers, books, and records; processing 

correspondence; developing and approving budgets; setting fee payments; 

responding to request for information).

E. Routine activities and operations conducted on or in an existing structure that 

are within the scope and compatibility of the present functional use of the 

building, will not result in a substantial increase in waste discharge to the 

environment, will not result in substantially different waste discharges from 

current or previous activities, and will not result in emissions that exceed 

established permit limits, if any. In these cases, a Record of Environmental 

Consideration (REC), documentation is required.

F. NIGC training in classrooms, meeting rooms, gaming facilities, or via the 

internet.

4.2.2 CATEGORY 2 - Regulation, Monitoring and Oversight of Indian Gaming 

Activities:

A. Promulgation or publication of regulations, procedures, manuals, and 

guidance documents necessary for NIGC’s oversight of Indian Gaming 

Facilities and intra-agency operations at existing facilities.

B. Support of compliance and enforcement functions by conducting compliance 

training for tribal gaming regulators and managers in classrooms, meeting 

rooms, gaming facilities, or via the internet. 

C. Preparing and issuing subpoenas, holding hearings, and taking depositions for 

informational gathering purposes, not associated with administrative 

enforcement actions. 

4.2.3 CATEGORY 3- Management Contract and Agreement Review Activities:

A. Approval of management contracts and collateral agreements (e.g. 

development, construction, or financial agreements) or management contract 

amendments.

B. Conducting background investigations in connection with a management 

contract amendment that only changes the persons or entities with a financial 

interest in or management responsibilities for the contract.

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4.3 Extraordinary Circumstances

Some types of actions that would normally be categorically excluded may not qualify 

for a CATEX because an extraordinary circumstance exists (See 40 C.F.R. §1508.4). 

The responsible NIGC official must evaluate each proposed action and use best 

professional judgment to determine if it meets the CATEX requirements described 

above and does not have any extraordinary circumstances. If the proposed action has 

one or more of the following conditions, extraordinary circumstances exist and the 

action cannot be categorically excluded:

4.3.1 There is a reasonable likelihood the proposed action/project will have a significant 

impact on public health or safety.

4.3.2 There is a reasonable likelihood the proposed action/project would involve effects 

on the environment that involve risks that are highly uncertain, unique, or are 

scientifically controversial.

4.3.3 There is a reasonable likelihood the proposed action/project would violate one or 

more federal, tribal, state, or local environmental laws/regulations/orders.

4.3.4 There is a potential that the proposed action/project will have an adverse effect on a 

property or structure eligible for listing or listed on the National Register of 

Historical Places, including degradation of scientific, cultural, or historical 

resources protected by the National Historic Preservation Act of 1966, as amended, 

requiring consultation.

4.3.5 There is a potential that the proposed action/project will have a significant impact 

on natural, ecological, or scenic resources of federal, tribal, state and/or local 

significance. These resources include federal or state listed endangered, threatened, 

or candidate species or designated or proposed critical habitat under the Endangered 

Species Act (ESA); resources protected by Coastal Zone Management Act 

(CZMA); resources protected by the Fish and Wildlife Coordination Act; prime, 

unique, tribal, state or locally important farmlands; and federal or state listed wild 

or scenic rivers, requiring consultation.

4.3.6 There is a reasonable likelihood the proposed action/project will have effects that 

are highly controversial on environmental grounds. 

4.4 Categorical Exclusion Documentation

4.4.1 The purpose of categorical exclusions is to reduce paperwork and delay. The NIGC 

is not required to repeatedly document actions that qualify for a categorical 

exclusion and do not involve an extraordinary circumstance (See 40 C.F.R. 

§1500.4(p)). 

4.4.2 The NIGC will document its decision to treat a particular action as categorically 

excluded from further NEPA review, when the CATEX applied specifically 

requires the preparation of a REC. In those cases, a REC will include:

4.4.2.1 A complete description of the proposed action/project;

4.4.2.2 The CATEX relied upon, including a brief discussion of why there are no 

extraordinary circumstances;

4.4.2.3 Supplemental documentation that supports the conclusions in the narrative. 

Examples include exhibit(s) showing boundaries of historical or archeological 

site(s) previously identified near the proposed project, documentation from the 

U.S. Fish and Wildlife Service noting that no endangered species or habitat is 

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present near the proposed project, evidence that the proposed project site is 

located outside any non- attainment area(s), etc. In some cases, a “no effect” 

determination from the State Historic Preservation Office or Tribal Historic 

Preservation Office may be required; 

4.4.2.4 The following statement: I certify that, to the best of my knowledge, the 

information provided is the best available information and is accurate; 

4.4.2.5 A signature from an environmental professional with a signature block that 

includes the professional’s credentials. 

5 Additional Considerations

5.1 Public Participation 

The NIGC recognizes the importance of public participation in preparing environmental 

assessments. In recognition, the agency will provide public notice of NEPA related 

hearings, public meetings, and the availability of environmental documents to affected 

and interested parties. Affected and interested parties can obtain NEPA related 

information by contacting the NIGC Director of Public Affairs. 

5.2 Scoping

Scoping, if appropriate, shall occur as set forth in 40 C.F.R. §1501.7.

5.3 Delegation

At its discretion, the NIGC may delegate preparation of any NEPA related documents to 

an outside agency or firm. Such agency or firm shall prepare any necessary documents as 

set forth in CEQ regulations. 

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