DOT-backed bill to assume NEPA reviews advances after sharp tribal objections

Mike Beam, director of planning and engineering for the South Dakota Department of Transportation, asked the House Transportation Committee on Feb. 19 to approve SB71, which would clear a path for the department to apply to assume certain NEPA environmental-review responsibilities for federally funded highway and bridge projects.

Beam said the assignment would not change federal environmental standards; rather, it would shift who conducts reviews, with the goal of accelerating project delivery and reducing duplication. He said the waiver of state sovereign immunity is contingent on a successful multi-step agreement with the Federal Highway Administration that includes public meetings and stakeholder input.

Tribal leaders and intergovernmental staff who testified online opposed the bill. Peter Lenke, chairman of the Crow Creek Sioux Tribe, said the measure “weakens enforceable tribal consultation required under federal law” and raised concerns that state-led reviews prioritize speed and cost over the nation-to-nation consultation that tribes receive from federal agencies. Ali Moran of the Cheyenne River Sioux Tribe urged more pre-legislative discussion with the nine tribes and warned the bill risks marginalizing tribal governments’ role in decisions that may affect treaty territories and cultural sites.

In rebuttal, DOT reiterated that government-to-government consultation with tribes remains non-assignable under federal law (citing 23 U.S.C. § 326[b] as discussed in committee) and said that consultation procedures would be maintained in any memorandum of understanding. DOT officials also told the committee they had consulted counterparts in other states that have assumed NEPA responsibilities and that litigation experiences varied; they said litigation costs associated with procedural NEPA claims are eligible under federal-aid rules.

What’s next: The committee voted to send SB71 to the floor. Committee members repeatedly urged DOT to continue direct government-to-government engagement with tribes as the assignment process proceeds.