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Consultation and Public Involvement Statutory/Regulatory Requirements:

Working with Tribes within the Statewide/Metropolitan Transportation Planning

Processes (August 2007)

Action Description Statutory/Regulatory References
Statewide Transportation Planning Defines distinct forms of cooperation or consultation to be undertaken by the States in the development of Statewide long-range transportation plans and Statewide Transportation Improvement Programs with Indian Tribal areas and the Secretary of Interior. Discussion on environmental mitigation activities of the long-range transportation plan shall be developed in consultation with tribes. 23 U.S.C. 135(e)-(g)
23 U.S.C 135 (f)(4)(B)
23 CFR
450.104; 450.208(a)(5); 450.210(a); 450.214(h); 450.216(a)
Metropolitan Transportation Planning Requires that where a metropolitan planning area includes Federal public lands and/or Indian Tribal lands, the affected Federal agencies and Indian Tribal governments shall be involved appropriately in the development of transportation plans and programs. Discussion on environmental mitigation activities of the long-range transportation plan shall be developed in consultation with tribes. The Transportation Management Area (TMA) Planning Certification Review is an oversight opportunity for FHWA/FTA to ensure that the metropolitan planning process in each TMA is being carried out in accordance with applicable provisions of Federal law. 23 U.S.C. 134(j)(3)(B)
23 U.S.C. 134(i)(2)(B)(ii)
23 U.S.C. 134(k)(5)
23 U.S.C. 101(a)(23)
23 CFR
450.104; 450.202; 450.312(i); 450.330(a)
Indian Reservation Roads Program Defines consultation as "government-to-government communication in a timely manner by all parties about a proposed or contemplated decision in order to (1) Secure meaningful tribal input and involvement in the decision-making process; and (2) Advise the tribe of the final decision and provide an explanation." 25 CFR 170.100–108
25 CFR 170.412–415
25 CFR 170.424
25 CFR 170.435–441
Non-Metropolitan Local Official Consultation Requires States to document their consultation process with non-metropolitan local officials that provides for their participation in statewide transportation planning and programming and that is separate and discrete from the public involvement process. This requirement does not specifically include Tribal areas. However, it does not preclude the State DOT from opting to include Tribal areas as part of their non-metropolitan local official consultation processes. In fact, several States have decided to take that approach. While acceptable, this would not take the place of the requirement for States to engage in separate and discrete consultation with Indian Tribal areas in the development of Statewide transportation plans and programs. 23 U.S.C. 135
23 CFR/49 CFR
450.104; 450.208(a)(4); 450.210; 450.214; 450.216; 450.224
Historic Preservation The 1992 Amendments to the National Historic Preservation Act (NHPA) requiresall Federal agencies to consult with Indian Tribes or Native Hawaiianorganizations for undertakings, which may affect properties of traditional religious and cultural significance on or off Tribal lands. The Section 106 regulations state that "the agency official shall ensure that consultation in the Section 106 process provides the Indian Tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects." The Section 106 regulations (36 CFR Part 800) implement the NHPA were revised on January 11, 2001 to reflect this change (see 36 CFR 800.2(c)(2)(ii)(A)).
Public Involvement Requires that metropolitan and statewide transportation decisions consider a wide array of factors including land use impacts and "the overall social, economic, energy, and environmental effects of transportation decisions." Public input is essential in adequately considering such effects. Prior to adopting plans or programs, the MPO or State DOT are required to provide citizens, affected public agencies, representatives of transportation agency employees, private providers of transportation, other affected employee representatives, and other interested parties with a reasonable opportunity to comment. The new IRR Rule found in 25 CFR identifies a set of criteria for the BIA and Tribes around public hearings. The tribe or BIA, after consultation with the appropriate tribe and other agencies will determines need for a public hearing (based on the criteria) for IRRTIP, long-range transportation plan or project. Also, required is a public review of the draft IRR long-range transportation plan. Statewide Planning
23 U.S.C. 135
23 CFR 450.210
Metropolitan Planning
23 U.S.C. 134
49 U.S.C. 5303, 5304, 5305
23 CFR
450.316(b); 450.318(b); 450.322(g); 450.324(b)
IRR Public Hearings/Review
25 CFR 170.435 to 170.441
25 CFR 170.413
Project Development
23 U.S.C. 128
23 CFR 771.111(h)
40 CFR 1501.7; and 40 CFR 1506.6

For more information contact Theresa Hutchins at FHWA (360-753-9402).
Updated October 1, 2012
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