kaw nation fee-to-trust and section 20 determination for 21.25 acres near braman, oklahoma

97 Pages·2008·4.17 MB·English

Final Environmental Assessment

KAW NATION FEE-TO-TRUST AND SECTION 20
DETERMINATION FOR 21.25 ACRES NEAR BRAMAN,
OKLAHOMA

October, 2008

Lead Agency:
U.S. Department of the Interior
Bureau Indian Affairs
W.C.D Office Complex
PO Box 368
Anadarko, OK 73005
Final Environmental Assessment

KAW NATION FEE-TO-TRUST AND SECTION 20 DETERMINATION
FOR 21.25 ACRES NEAR BRAMAN, OKLAHOMA

October, 2008

Lead Agency:
U.S. Department of the Interior
Bureau Indian Affairs
W.C.D Office Complex
PO Box 368
Anadarko, OK 73005

Prepared by:
Kaw Nation Environmental Department
Drawer 50
Kaw City, OK 74641
580-269-2552
Fax [phone]
www.kawnation.com
Braman Environmental Assessment
Table of Contents
Page
Acronyms iv
SECTION 1.0
Introduction………………………………………………………………..1
Background………………………………………………………………..3
History of Kaw Nation Land Tenure……………………………………...4
Setting / Location ………………………………………………………….6
Environmental Review Process……………………………………………9
Scoping…………………………………………………………………...10
Regulatory Permits and Approvals……………………………………….12
SECTION 2.0
Proposed Action and Alternatives………………………………………..13
Alternative 1: Kanza Travel Plaza Only (Trust-only Designation)………17
Alternative 2: Travel Plaza and Gaming Facility………………………...18
Alternative 3: Kanza Travel Plaza Without Trust Designation…………..22
Alternative Eliminated from Further Consideration……………………...23
Comparison of Proposed Alternatives……………………………………23
SECTION 3.0
Description of the Affected Environment……………………………….28
Land Resources………………………………………………………….28
Water Resources…………………………………………………………32
Air Quality……………………………………………………………….36
Noise……………………………………………………………………..40
Underground Storage Tanks……………………………………………..40
Biological Resources……………………………………………………..41
Cultural Resources……………………………………………………….43
Employment, Economy, and Welfare……………………………………43
Transportation……………………………………………………………47
Solid Waste Service……………………………………………………...48
SECTION 4.0
Environment Consequences……………………………………………...50
Alternative 1: Kanza Travel Plaza Only…………………………………50
Alternative 2: Travel Plaza and Gaming Facility………………………...57
Comparison………………………………………………………………76
SECTION 5.0
Cumulative Affects………………………………………………………80
Land Resources…………………………………………………………..81
Water Resources…………………………………………………………81
Air Quality……………………………………………………………….82
Biological Resources……………………………………………………..83
Cultural Resources……………………………………………………….83
Socioeconomic Conditions / Environmental Justice……………………..83
Other Issues………………………………………………………………83
SECTION 6.0
Consultation, Coordination and list of Preparers………………………..85
Overview…………………………………………………………………85
Coordination……………………………………………………………..85
Preparers of EA………………………………………………………….86
SECTION 7.0
Bibliography…………………………………………………………….88
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LIST OF FIGURES

1.1 Historic Kanza Lands Prior to 1825…………………………………………………….4
1.2 Kaw Nation’s Land History 1825-1906…………………………………………………5
1.3 Braman Oklahoma Location…………………………………………………………….7
1.4 Location of Proposed project in Kay County Oklahoma………………………………..8
1.5 Topographic Site Map Outlining Project Parcel………………………………………...9
2.1 Kanza Travel Plaza…………………………………………………………………….13
2.2 and 2.3 Enhanced Aerial Photographs…………………………………………………14
2.4 Braman Site Location with Travel Plaza and Gaming Facility………………………..20
3.1 Braman Topographic Map……………………………………………………………..29
3.2 USGS Oklahoma Earthquake Hazard Map……………………………………………30
3.3 Kay County Oklahoma 1967 Soil Survey Map………………………………………...31
3.4 Braman Area Flood Map………………………………………………………………36
3.5 Counties Designated Nonattainment…………………………………………………..38
3.6 2006 Traffic Data Kay County, OK……………………………………………………47
3.7 Current Traffic Data from Traffic Study………………………………………………48
3.8 Trash Compactor at Kanza Travel Plaza……………………………………....49
4.1 Braman Wastewater Treatment System……………………………………….60
4.2 2008 Combined Traffic………………………………………………………..73

LIST OF TABLES
2-1 Proposed Gaming Facility……………………………………………………………..19
2-2 Proposed Gaming Eligible Site………………………………………………………..21
2-3 Qualitative Comparison of Alternative Actions for Primary Issues…………………..23
3-1 Capability Classification of Norge Soil……………………………………………….32
3-2 State and National Air Quality Standards……………………………………………..37
3-3 Kay County NAAQS Attainment Status………………………………………………38
3-4 HUD Noise Standards…………………………………………………………………40
3-5 Local Population Statistics…………………………………………………….44
3-6 Area Unemployment…………………………………………………………………..45
3-7 Medical Health Services………………………………………………………………45
3-8 Solid Waste Breakdown for Existing Facilities at Braman Property………………….49
4-1 Water Usage and Wastewater………………………………………………………….51
4-2 Solid Waste Break Down of Alternative 1…………………………………………….57
4-3 Projected Traffic Intercept……………………………………………………………..71
4-4 Projected Site Generated Traffic Volumes…………………………………………….72
4-5 Traffic Capacity Analysis Summer…………………………………………………….73
4-6 Solid Waste Break Down of Alternative 2……………………………………………..75
4-7 Quantitative Comparison of Alternative Actions………………………………………76

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APPENDICES

Appendix A Legal Description and Maps
Appendix B Gaming Market Assessment
Appendix C Comments
Appendix D Kaw Nation Biological Assessment
Appendix E EDR Report
Appendix F Kaw Nation Archeological Report
Appendix G Kaw Nation Utilities Data
Appendix H Wastewater System
Appendix I Underground Storage Tanks Inspection Report
Appendix J Example Storm Water Pollution Protection Plan
Appendix K Kaw Nation Section 20 Application
Appendix L Traffic Impact Study; Kaw Nation Casino Braman, Oklahoma
Appendix M Public Notice
Appendix N Phase One Environmental Assessment
Appendix O Braman Water Infrastructure Project
Appendix P Air Quality
Appendix Q Flood Map
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Acronyms

ACOE Army Corps of Engineers
ALLD Automatic Line Leak Detectors
ATG Automatic Tank Gauging
BIA Bureau of Indian Affairs
BIAM Bureau of Indian Affairs Manual
CAA Clean Air Act
CEO Chief Executive Officer
CEQ Council on Environmental Quality
CERCLIS Comprehensive Environmental Responses, Compensation, and Liability
Information System
CFR Code of Federal Regulations
CSLD Continuous Statistical Leak Detection
CWA Clean Water Act
EA Environmental Assessment
ESA Endangered Species Act
EIS Environmental Impact Statement
FPPA Farmland Protection Policy Act
FEMA Federal Emergency Management Agency
FWS Fish and Wildlife Service
GPD Gallons per Day (gpd)
GPR Ground Penetrating Radar
HUD Housing and Urban Development
ICDBG Indian Community Development Block Grant
IGRA Indian Gaming Regulatory Act
ITEC Intertribal Environmental Council
KNED Kaw Nation Environmental Department
KEDA Kaw Nation Economic Development Authority
DNL/Ldn Day and Night Average Sound Level
NAAQS National Ambient Air Quality Standard
NEPA National Environmental Policy Act
NHPO National Historical Preservation Office
NOx Nitrogen Oxide
NPDES National Pollution Discharge Elimination System
NRCS Natural Resources Conservation Service
ODEQ Oklahoma Department of Environmental Quality
ORVR Onboard Refueling Vapor Recovery Equipment
OWRB Oklahoma Water Resources Board
PM Particulate Mater 10 micrometers or less
10
ROG Reactive Organic Gases
SAAQS State Ambient Air Quality Standard
SDWA Safe Drinking Water Act
SHPO State Historical Preservation Office
SIR Statistical Inventory Reconciliation
UST Underground Storage Tank
VOC Volatile Organic Carbon

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This Chapter summarizes the purpose of
and need for the action and provides an
overview of issues and concerns.

SECTION 1.0
________________________________
Purpose of and Need for Action
1.1 Introduction

This Final Environmental Assessment was prepared to assist the Bureau of Indian Affairs in
considering the environmental effects of the Kaw Nation’s proposal for the Bureau of Indian
Affairs to take 21.25 acres of fee land currently owned by the Kaw Nation (also referenced herein
as the Nation) into trust on behalf of the Nation. The Bureau of Indian Affairs (BIA) is the
federal agency charged with reviewing and approving tribal applications to take land into federal
trust status pursuant to Part 151 of Title 25 of the Code of Federal Regulations(CFR). For this
project, the BIA is the lead agency under the National Environmental Policy Act (NEPA) (42
U.S.C. 4321 et. seq.).

This Final Environmental Assessment (FEA) has been completed in accordance with NEPA, the
Council on Environmental Quality’s Guidelines for Implementing NEPA (40 CFR 1500-1508);
the BIA’s NEPA Handbook (59 BIAM 3-H), and 25 U.S.C. 2719 requirements (popularly
referenced as a Section 20 determination) as reflected in the Bureau of Indian Affairs
implementing regulations (25 CFR Part 292 as found in 73 Fed. Reg. 29375 et. seq., May 20,
2008). The FEA provides a detailed description of the Proposed Action and an analysis of the
potential consequences associated with the Proposed Action. This FEA also includes a discussion
and analysis of project alternatives, impact avoidance, and mitigation measures. The mitigation
measures are incorporated into the Proposed Action.

The Braman Property. The 21.25 acres of land (also referred to as the parcel, the Braman
property, or the project site) is adjacent to an Interstate 35 interchange approximately one mile
northwest from the city of Braman. It is in an unincorporated portion of Kay County in rural
north-central Oklahoma approximately four miles south of the Kansas border and is within the
Kaw Nation’s service area. The land and structures on it were purchased by the Kaw Nation for
its income and jobs potential in 1990. At the time of purchase, the structures included an
operating travel plaza (diesel and gasoline refueling station) and a two-building, nineteen-unit
motel with an adjacent restaurant catering to the traveling public. A new travel plaza building,
which includes a refueling station and related restaurant and retail shop, was completed in 2001
and provides an annual profit for the Nation. The larger of the two motel buildings as well as its
adjacent restaurant have since been closed and were removed in 2006; the smaller motel building
with seven units and an office continue to operate; the office is also used currently as office space
for the travel plaza. Figures 2.1 and 2.2 in the Proposed Action and Alternatives Section of this
FEA provide photographs of the travel plaza and the parcel proposed to be taken into trust.

The Nation petitioned to have the land taken into trust in 1991, shortly after its acquisition. In
2004, the Kaw Nation submitted a revised petition to the Secretary of the Department of the
Interior (Secretary) to take the land into trust for the further purpose of providing an opportunity
to build a gaming facility on the property, which requires a Section 20 determination. Such a
facility, if built, would be in the motel area on the northwestern portion of the Braman property.
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The Nation plans to retain and continue operating the travel plaza at the northeastern portion of
the property. Additionally, the Nation is installing a water tower at the far northwestern corner of
the property which would serve facilities on the Braman tract and also benefit residents of the
surrounding area. The U.S. Department of Housing and Urban Development has provided a
matching grant to the Nation for that purpose and the engineering design work is nearing
completion. The water tower is expected to be completed and be in service by the winter of
2009-2010.

Scope of the Proposed Project. A market assessment for a gaming facility has been completed,
but the tribe has not contracted for a specific gaming facility design pending the Secretary’s
decision on taking the land into trust for the Nation. For that reason, this environmental
assessment has been prepared using a hypothetical gaming facility sized to comport with the
results of the market assessment for the size of clientele that would likely be attracted to a gaming
facility at the Braman site. Based on the market data and an assumption that Kansas would not
build a state-owned gaming facility south of Wichita, a gaming facility at the Braman tract,
complete with offices, secure counting and surveillance space, a restaurant, and a gift shop, would
be a one- to two-story structure with approximately 36,000 square feet of floor space. The
building would be surrounded by landscaping and parking areas.

If Kansas does build a gaming facility, it is likely that the market would not support a Kaw
gaming facility in the Braman area as large as that hypothesized above and the plans would have
to be scaled down. The larger facility has been used for the primary analysis in this FEA,
however, because it reflects the size of facility the Kaw Nation is considering building at the
project site as well as the maximum environmental impacts that could reasonably be anticipated.
A smaller facility would have lesser environmental effects. In either case, a gaming facility at the
Braman property would not significantly affect the environment. If developed, a gaming facility
at the site would be managed directly by the Kaw Nation’s Kaw Economic Development
Authority (KEDA), which operates a somewhat larger gaming facility in Newkirk, Oklahoma
offering bingo, card games, and electronic gaming machines.

Purpose and Need. The purpose and need for taking the property into federal trust and
approving the development and management of a gaming program is to carry out the federal
government’s trust responsibilities to the Tribe and to allow the Kaw Nation to develop
enterprises to generate sustainable revenues and jobs that would in turn improve the long term
economic conditions of the Nation and its members. Revenue generated from the economic
development would be used to support social, educational, public safety, judicial and economic
development programs for tribal members and the Nation. The proposed action would promote
economic development and the self-governance capacity of the Kaw Nation to meet the needs of
a fast growing tribal population through the development of the land. The land taken into trust
would also partially compensate for the loss of reservation land in Oklahoma, virtually all of
which was flooded by a reservoir built by the U.S. Army Corps of Engineers during the 1960s
and 1970s, and sizeable previous aboriginal and reservation lands of the Nation in Kansas,
Missouri, Iowa, and Nebraska that were lost through one-sided treaties and Congressional action.

Scope of This FEA. This FEA provides a detailed description of three proposed alternatives.
Alternative one assumes the Department of the Interior takes the Braman property into trust for
the Kaw Nation, but does not make a Section 20 determination allowing the property to be used
for a gaming facility. Substantively, that would result in the Nation continuing to operate the
existing travel plaza and small motel at the site and this result is examined for its environmental
effects. Alternative two assumes that the Department of the Interior acts favorably on both the
fee-to-trust petition and the Section 20 determination. This is the Proposed Action and Preferred
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Alternative. Substantively, the Kaw Nation anticipates that it would build a gaming facility on
the Braman property in addition to continuing to operate the travel plaza there; this result is also
examined for its environmental effects. This FEA also briefly describes a No Action alternative,
which assumes that the land is not taken into trust and therefore a gaming facility can not be
constructed on the project site. In terms of environmental effects, this alternative is substantively
the same as alternative one, so it is only briefly described in Section 2.

Supporting documents such as maps and figures are included as well key documents upon which
the Nation relied in preparing this FEA. This includes the market study, traffic study, Section 20
petition, and contents of the Nation’s related application. Land resources, water resources, air
quality and noise, underground storage tanks, biological resources including endangered species,
cultural resources, employment and economic factors, transportation, waste disposal, and
environmental justice were analyzed under each alternative. Detailed studies of such topics have
been included in the appendices for reference, were appropriate.
1.2 Background

The Kaw Nation (formerly known as the Kanza, Kansa, or Kansas) is a federally-recognized
Indian tribe headquartered in Kaw City, Kay County, Oklahoma in the north-central part of
northern Oklahoma adjacent to the State of Kansas. The Nation’s Council House is located near
Kaw Lake, a major Oklahoma recreational destination, which completely inundated the Nation’s
reservation. There are 2,800 members listed on the roll of the Kaw Nation of which
approximately 20% reside on or near the original Kanza Reservation in Oklahoma. According to
data from the 2000 Census there are 3,621 Indian people living in Kay County. The Kaw
Nation’s geographical service area consists of all of Kay County east of Interstate 35 except for a
strip of land in the far southern portion of the county south of a line starting at the intersection of
Interstate 35 with Old Highway 60 and running east to the Arkansas River.

The Kaw Nation is organized under the authority of the Oklahoma Indian Welfare Act of 1936.
On July 31, 1990, the Kaw Nation adopted a new tribal constitution and bylaws, which were
approved by the Secretary of the Interior on August 14, 1990. The governmental powers of the
Nation are vested in the General Council, which is comprised of the enrolled members of the
Kaw Nation who are over the age of 18. Pursuant to the Nation's Constitution, the bulk of the
Nation's affairs are conducted by its Executive Council which consists of a Chairperson/CEO,
Vice chairperson, Secretary, and four other members.

The Executive Council is elected by a majority vote of the General Council. Executive Council
members serve staggered four-year terms of office. Since elections are held biennially, only three
or four of the Executive Council positions are open in any given election. Interim vacancies are
filled by special election. The Nation's judicial power is vested in its District and Supreme Courts,
organized pursuant to the Nation’s Constitution. The executive functions of the Nation are
primarily administered by the Chairman/CEO and Executive Council from the Nation's
governmental headquarters.

The Nation employs approximately 100 tribal employees in its various governmental programs
and departments, including: Police; Education; Social Services; Grants and Contracts;
Environmental; Self-Governance; Housing Authority; Tribal Enrollment; Youth; Indian Child
Welfare; and Emergency Management. Additionally, it operates a health clinic and pharmacy; a
women’s health care program; a wellness center; a day care center; a youth program that includes
summer and after school activities, mentoring and tutoring programs; a tribal scholarship program
for university and technical school education; and programs to provide glasses, hearing aids, adult
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education, and assistance with utility costs. These departments and programs primarily serve the
Nation’s members residing in its statistical/service area with the Nation’s principal facilities being
located in Kaw City and Newkirk. The Kaw Nation has operated under a Self-Governance
Compact with the Department of the Interior since 1996.

The Kaw Nation conducts its economic activities through the Kaw Enterprise Development
Authority (KEDA), which has over 300 employees. The Development Authority is a separate
government agency chartered by the Nation and managed by a board of commissioners to
acquire, develop and manage economic assets on behalf of the Nation. In addition to the travel
plaza near Braman, the Enterprise Authority operates the Southwind Casino in Newkirk which
offers electronic bingo and card games, a convenience store in Ponca City, a smoke shop in Ponca
City, and a wholesale tobacco enterprise that distributes in both Oklahoma and Kansas. It also
developed and owns Southwind Industrial, LLC, which markets industrial supplies and hoses and
provides fluid transfer services. Profits from these activities fund the governmental programs
described above such as the clinic, pharmacy and wellness center, the police department and the
youth and seniors programs directly, through providing matching funds for grants, and through
supplementing federal funds. KEDA profits also directly fund development of new enterprises
and provide matching funds for economic development grants.
1.2.1 History of Kaw Nation Land Tenure

In the early 19th Century, the Kaw Nation (also Kanza or Kansa), also known as the People of the
South Wind, controlled an area of approximately 25 million acres covering what is now the larger
portion of Kansas and portions of northwest Missouri, southwest Iowa, and southeast and south-
central Nebraska (see fig. 1-1). The Nation’s presence was so great that the State of Kansas was
named for it.

Figure 1-1. Historic Kanza Lands Prior to 1825

The Kanza entered into a treaty with the United States in 1825, ceding 18,314,240 acres and
leaving a reservation of 6,599,040 acres (fig. 1-2). In a second treaty in 1846, the Nation ceded
an additional 2 million acres. That treaty allowed the President to conclude that the reservation
lands contained insufficient timber resources to meet the Nation’s needs and to move the Nation
4