Department of the Interior
Departmental Manual
Effective Date: 5/27/04
Series: Environmental Quality Programs
Part 516: National Environmental Policy Act of 1969
Chapter 7: Review of Environmental Impact Statements and
Project Proposals Prepared by Other Federal Agencies
Originating Office: Office of Environmental Policy and Compliance
516 DM 7
7.1 Purpose.
A. These
procedures implement the policy and directives of the National Environmental
Policy Act of 1969 (PL 91-190, 83 Stat. 852, January 1, 1970, NEPA); Section
2(f) of Executive Order No. 11514 (March 5, 1970); the CEQ Regulations (43 FR
55990, November 28, 1978; CEQ); Bulletin No. 72-6 of the Office of Management
and Budget (September 14, 1971); and provide guidance to bureaus and offices of
the Department in the review of EISs prepared by and for other Federal
agencies.
B. In accordance
with 112 DM 4.2F, these procedures further govern the Department’s
environmental review of non-Interior proposals such as regulations,
applications, plans, reports, and other environmental documents which affect
the interests of the Department. Such
proposals are prepared, circulated, and reviewed under a wide variety of
statutes and regulations. These
procedures ensure that the Department responds to these review requests with
coordinated comments and recommendations under Interior’s various authorities.
7.2 Policy. The Department considers it a priority to
provide competent and timely review comments on EISs and other environmental or
project review documents prepared by other Federal agencies for their major
actions which significantly affect the quality of the human environment. All such documents are hereinafter referred
to as “environmental review documents.”
The term “environmental review document” as used in this chapter is
separate from and broader than the term “environmental document” found in 40
CFR 1508.10 of the CEQ Regulations.
These reviews are predicated on the Department's jurisdiction by law or
special expertise with respect to the environmental impact involved and shall
provide constructive comments to other Federal agencies to assist them in
meeting their environmental responsibilities.
7.3 Responsibilities.
A. The Assistant
Secretary - Policy, Management and Budget (AS/PMB): Shall be the Department's contact point for
the receipt of requests for reviews of environmental review documents prepared
by or for other Federal agencies. This
authority shall be carried out through the Director, Office of Environmental
Policy and Compliance (OEPC).
B. The
Director, Office of Environmental Policy and Compliance.
(1) Shall
determine whether such review requests are to be answered by a Secretarial
Officer, the Director, OEPC, or by a Regional Environmental Officer, and
determine which bureaus and/or offices shall perform such reviews;
(2) Shall
prepare, or where appropriate, shall designate a lead bureau responsible for
preparing the Department's review comments.
The lead bureau may be a bureau, Secretarial office, other Departmental
office, or task force and shall be that organizational entity with the most
significant jurisdiction or environmental expertise in regard to the requested
review;
(3) Shall
establish review schedules and target dates for responding to review requests
and monitor their compliance;
(4) Shall
review, sign, and transmit the Department's review comments to the requesting
agency;
(5) Shall
consult with the requesting agency on the Department's review comments on an
“as needed” basis to ensure resolution of the Department's concerns; and
(6) Shall
consult with the Office of Congressional and Legislative Affairs and the
Solicitor when environmental reviews pertain to legislative or legal matters,
respectively.
C. The Office
of Congressional and Legislative Affairs:
Shall ensure that requests for reviews of environmental review documents
prepared by other Federal agencies that accompany or pertain to legislative
proposals are immediately referred to the AS/PMB.
D. Regional
Environmental Officers: When
designated by the Director, OEPC, shall review, sign, and transmit the
Department's review comments to the requesting agency.
E. Assistant
Secretaries and Heads of Bureaus and Offices:
(1) Shall
designate officials and organizational elements responsible for the
coordination and conduct of environmental reviews and report this information
to the Director, OEPC;
(2) Shall
provide the Director, OEPC, with appropriate information and material
concerning their delegated jurisdiction and special expertise in order to
assist in assigning review responsibilities;
(3) Shall
conduct reviews based upon their areas of jurisdiction or special expertise and
provide comments to the designated lead bureau or office assigned
responsibilities for preparing Departmental comments;
(4) When
designated lead bureau by the Director, OEPC, shall prepare and forward the
Department's review comments as instructed;
(5) Shall
ensure that review schedules for discharging assigned responsibilities are met
and promptly inform other concerned offices if established target dates cannot
be met and when they will be met;
(6) Shall
provide a single, unified bureau response to the lead bureau, as directed;
(7) Shall
ensure that the policies of 516 DM 7.2 regarding competency and timeliness are
carried out; and
(8) Shall
provide the necessary authority to those designated in 7.3E(1)
above to carry out all the requirements of 516 DM 7.
7.4 Types of Reviews.
A. Descriptions
of Proposed Actions:
(1) Federal
agencies and applicants for Federal assistance may circulate descriptions of
proposed actions for the purpose of soliciting information concerning
environmental impacts in order to determine whether to prepare EISs. Such
descriptions of proposed actions are not substitutes for EISs.
(2) Requests
for reviews of descriptions of proposed actions are not required to be
processed through the OEPC. Review
comments may be handled independently by bureaus and offices, with the Regional
Environmental Officer or Director, OEPC, being advised of significant or highly
controversial issues. Review comments
are for the purpose of providing informal technical assistance to the
requesting agency and should state that they do not represent the views and
comments of the Department.
B. Environmental
Assessments:
(1) EAs are not substitutes for EISs. These assessments or reports may be prepared
by Federal agencies, their consultants, or applicants for Federal
assistance. They are prepared either to
provide information in order to make a finding that there are no significant
impacts or that an EIS should be prepared.
If they are separately circulated, it is generally for the purpose of
soliciting additional information concerning environmental impacts.
(2) Requests
for reviews of EAs are not required to be processed
through the OEPC. Review comments may be
handled independently by bureaus and offices, with the Regional Environmental
Officer or Director, OEPC, being advised of significant or highly controversial
issues. If a bureau requests and OEPC
agrees, a control number may be assigned with appropriate instructions. Review comments are for the purpose of
providing informal technical assistance to the requesting agency and should
state that they do not represent the views and comments of the Department.
C. Findings of
No Significant Impact:
(1) Findings
of No Significant Impact are prepared by Federal agencies to document that
there is no need to prepare an EIS. A FONSI
is a statement for the record by the proponent Federal agency that it has
reviewed the environmental impact of its proposed action (in an EA), that it
determines that the action will not significantly affect the quality of the
human environment, and that an EIS is not required. Public notice of the availability of such
findings shall be announced; however, FONSIs are not
normally circulated.
(2) Findings
of No Significant Impact are not required to be processed through the
OEPC. Review comments may be handled
independently by bureaus and offices, with the Regional Environmental Officer
or Director, OEPC, being advised of significant or highly controversial issues.
D. Notices of
Intent and Scoping Requests:
(1) Notices
of intent and scoping requests mark the beginning of the formal review
process. Notices of intent are published
in the Federal Register and announce that an agency plans to prepare an
environmental review document under NEPA.
Often the NOI and notice of scoping meetings and/or requests are
combined into one Federal Register notice.
(2) Reviews
of notices of intent and scoping requests are processed through the OEPC with
instructions to bureaus to comment directly to the requesting agency. Review comments are for the purpose of
providing informal technical assistance to the requesting agency and should
state that they do not represent the views and comments of the Department.
E. Preliminary,
Proposed, or Working Draft Environmental Impact Statements:
(1) Preliminary,
proposed, or working draft EISs are sometimes prepared and circulated by
Federal agencies and applicants for Federal assistance for consultative
purposes.
(2) Requests
for reviews of these types of draft EISs are not required to be processed
through the OEPC. Review comments may be
handled independently by bureaus and offices with the Regional Environmental
Officer or Director, OEPC, being advised of significant or highly controversial
issues. Review comments are for the purpose of providing informal technical
assistance to the requesting agency and should state that they do not represent
the views and comments of the Department.
F. Draft
Environmental Impact Statements:
(1) Draft
EISs are prepared by Federal agencies under the provisions of Section 102(2)(C) of NEPA and provisions of the CEQ Regulations. They are filed with the EPA and officially
circulated to other Federal, State, and local agencies [see 40 CFR 1503.1(a)]
for review based upon their jurisdiction by law or special expertise with
respect to the agency mission, related program experience, or environmental
impact of the proposed action or alternatives to the action [see 7.5A(1)].
(2) All
requests from other Federal agencies for review of draft EISs shall be made
through the Director, OEPC. Review
comments shall be handled in accordance with the provisions of this chapter and
guidance memoranda may be issued and updated by the OEPC.
G. Final
Environmental Impact Statements:
(1) Final
EISs are prepared by Federal agencies following receipt and consideration of
review comments. They are filed with the
EPA and are circulated to the public for an administrative waiting period of
thirty days and sometimes for comment.
(2) The
Director, OEPC, shall review final EISs to determine whether they reflect
adequate consideration of the Department's comments. Bureaus and offices shall not comment
independently on final EISs, but shall inform the Director, OEPC, of their
views. Any review comments shall be
handled in accordance with the instructions of the OEPC.
H. License and
Permit Applications:
(1) The
Department receives draft and final environmental review documents associated
with applications for other Federal licenses and permits. This activity largely involves the regulatory
program of the Corps of Engineers and the hydroelectric and natural gas
pipeline licensing programs of the Federal Energy Regulatory Commission.
(2) Environmental review of applications is generally handled in the same manner as for draft and final EISs. Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website and consult with the OEPC for the most current review guidance.
(3) While
review of NEPA compliance documents associated with Corps of Engineers permit
applications is managed in accordance with this Chapter, review of Corps of
Engineers permit applications is managed in accordance with 503 DM 1. Reviewers are referred to that Manual Part
and to 7.5C(3) below for the processing of concurrent
reviews.
I. Project
Plans and Reports without Associated Environmental Review Documents:
(1) The
Department receives draft and final project plans and reports under various
authorities which do not have environmental review documents circulated with
them. This may be because NEPA
compliance has been completed, will be completed on a slightly different
schedule, NEPA does not apply, or other reasons.
(2) Environmental review of these documents is handled in the same manner as for draft and final EISs. Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website and consult with the OEPC for the most current review guidance.
J. Federal
Regulations:
(1) The
Department circulates and controls the review of advance notices of proposed
rulemaking, proposed rulemaking, and final rulemaking which are environmental
in nature, may impact the quality of the human environment, and may impact the
Department’s natural resources and programs.
(2) Environmental review of these documents is handled in the same manner as for draft and final EISs. Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website and consult with the OEPC for the most current review guidance.
K. Documents
Prepared Pursuant to Other Environmental Statutes:
(1) The Department receives draft and final project plans prepared pursuant to other environmental statutes [e.g., National Historic Preservation Act (NHPA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Resource Conservation and Recovery Act (RCRA), and the Oil Pollution Act (OPA)], which may not have environmental review documents circulated with them.
(2) Environmental review of these documents is handled consistently with the policies and provisions of this part, and in accordance with further guidance from the Director, OEPC. Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website and consult with the OEPC for the most current review guidance.
L. Section
4(f) Documents:
(1) Under
Section 4(f) of the Department of Transportation Act, the Secretary of
Transportation may approve a transportation program or project requiring the
use of publicly owned land of a public park, recreation area, or wildlife and
waterfowl refuge of national, State or local significance, or land of an
historic site of national, State, or local significance (as determined by the
Federal, State, or local officials having jurisdiction over the park, area,
refuge, or site) only if there is no prudent and feasible alternative to using
that land and the program or project includes all possible planning to minimize
harm to the park, recreation area, wildlife and waterfowl refuge, or historic
site resulting from the use.
(2) Environmental review of Section 4(f) documents is handled in the same manner as for draft and final EISs. Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website and consult with the OEPC for the most current review guidance.
7.5 Content of Comments on Environmental
Review Documents.
A. Departmental
Comments:
(1) Departmental
comments on environmental review documents prepared by other Federal agencies
shall be based upon the Department's jurisdiction by law or special expertise
with respect to the agency mission, related program experience, or environmental
impact of the proposed action or alternatives to the action. The adequacy of the document in regard to applicable
statutes is the responsibility of the agency that prepared the document and any
comments on its adequacy shall be limited to the Department's jurisdiction or
environmental expertise.
(2) Reviews
shall be conducted in sufficient detail to ensure that both potentially
beneficial and adverse environmental effects of the proposed action and
alternatives, including cumulative and secondary effects, are adequately
identified. Wherever possible, and
within the Department's competence and resources, other agencies will be
advised on ways to avoid or minimize adverse impacts of the proposed action and
alternatives, and on alternatives to the proposed action that may have been
overlooked or inadequately treated.
(3) Review
comments should not capsulate or restate the environmental review document ,
but should provide clear, concise, substantive, fully justified, and complete
comments on the stated or unstated environmental impacts of the proposed action
and, if appropriate, on alternatives to the action. Comments, either positive or negative, shall
be objective and constructive.
(4) Departmental
review comments shall be organized as follows:
(a) Control
Number. The Departmental review
control number shall be typed in the upper left hand corner below the
Departmental seal on the letterhead page of the comments.
(b) Introduction. The introductory paragraph shall reference
the other Federal agency's review request, including the date, the type of
review requested, the subject of the review; and, where appropriate, the
geographic location of the subject and the other agency's control number.
(c) General
Comments, if any. This section will
include those comments of a general nature and those which occur throughout the
review which ought to be consolidated in order to avoid needless repetition.
(d) Detailed
Comments. The format of this section
shall follow the organization of the other agency's environmental review
document. These comments shall not comment
on the proposed actions of other Federal agencies, but shall constructively and
objectively comment on the statement’s adequacy in describing the environmental
impacts of the action, the alternatives, and the impacts of the
alternatives. Comments shall specify any
corrections, additions, or other changes required to make the statement
adequate.
(e) Summary
Comments, if any. In general, the
Department will not take a position on the proposed action of another Federal
agency, but will limit its comments to those above. However, in those cases where the Department
has jurisdiction by statute, Executive Order, memorandum of agreement, or other
authority, the Department may comment on the proposed action. These comments shall be provided in this
section and may take the form of support for, concurrence with, concern over,
or objection to the proposed action and/or the alternatives.
B. Bureau and
Office Comments: Bureau and office
reviews of EISs prepared by other Federal agencies are considered informal
inputs to the Department's comments and their content will generally conform to
paragraph 7.5A of this chapter with the substitution of the bureau's or
office's delegated jurisdiction or special environmental expertise for that of
the Department.
C. Relationship
to Other Concurrent Reviews:
(1) Where
the Department, because of other authority or agreement, is concurrently
requested to review a proposal as well as its EIS, the Department's comments on
the proposal shall be separately identified and placed in front of the comments
on the EIS. A summary of the
Department's position, if any, on the proposal and its environmental impact
shall be separately identified and follow the review comments on the EIS.
(2) Where
another Federal agency elects to combine other related reviews into the review
of the EIS by including additional or more specific information into the
statement, the introduction to the Department's review comments will
acknowledge the additional review request and the review comments will be
incorporated into appropriate parts of the combined statement review. A summary of the Department's position, if
any, on the environmental impacts of the proposal and any alternatives shall be
separately identified and follow the detailed review comments on the combined
statement.
(3) In
some cases, the concurrent review is not an integral part of the environmental
compliance review but is being processed within the same general time period as
the environmental review. If there is
also an environmental review being processed by the OEPC, there is potential
for two sets of conflicting comments to reach the requesting agency. Bureaus must recognize that this possibility
exists and must check with the Regional Environmental Officer to determine the
status of any environmental review prior to forwarding the concurrent review
comments to the requesting agency. Any
conflicts must be resolved before the separate comments may be filed. One review may be held up pending completion
of the concurrent review and consideration of filing a single comment
letter. A time extension may be
necessary and must be obtained if a review is to be held up pending completion
of a concurrent review.
(4) The
Department’s intervention in another agency’s adjudicatory process is also a
concurrent review. Such reviews are
governed by 452 DM 2 which must be consulted in applicable cases. The most common cases involve the
Department’s review of hydroelectric and natural gas applications of the
Federal Energy Regulatory Commission. In
these cases, it is recommended that bureaus consult frequently with the
appropriate attorney of record in the Office of the Solicitor.
7.6 Availability of Review Comments.
A. Prior to the
public availability of another Federal agency's final EIS, the Department shall
not independently release to the public its comments on that agency's draft EIS. In accordance with Section 1506.6(f) of the
CEQ Regulations, the agency that prepared the statement is responsible for
making the comments available to the public, and requests for copies of the
Department's comments shall be referred to that agency. Exceptions to this procedure shall be made by
the OEPC and the Office of the Solicitor.
B. The
availability of various internal Departmental memoranda, such as the review
comments of bureaus, offices, task forces, and individuals, which are used as
inputs to the Department's review comments is governed by the Freedom of
Information Act (5 U.S.C. Section 552) and the Departmental procedures
established by 43 CFR 2. Upon receipt of
such requests and in addition to following the procedures above in 7.6A, the
responsible bureau or office shall notify and consult their bureau Freedom of
Information Act Officer and the OEPC to coordinate any responses.
7.7 Procedures for Processing Environmental
Reviews.
A. General
Procedures:
(1) All
requests for reviews of environmental review documents prepared by or for other
Federal agencies shall be received and controlled by the Director, OEPC.
(2) If a
bureau or office, whether at headquarters or field level, receives an
environmental review document for review directly from outside of the
Department, it should ascertain whether the document is a preliminary,
proposed, or working draft circulated for technical assistance or input in
order to prepare a draft document or whether the document is in fact a draft
environmental review document being circulated for official review.
(a) If
the document is a preliminary, proposed, or working draft, the bureau or office
should handle independently and provide whatever technical assistance possible,
within the limits of their resources, to the requesting agency. The response should clearly indicate the type
of assistance being provided and state that it does not represent the
Department's review of the document.
Each bureau or office should provide the Regional Environmental Officer
and the Director, OEPC, copies of any comments involving significant or
controversial issues.
(b) If
the document is a draft or final environmental review document circulated for
official review, the bureau or office should inform the requesting agency of
the Department’s procedures in subparagraph (1) above and promptly refer the
request and the document to the Director, OEPC, for processing.
(3) All
bureaus and offices processing and reviewing environmental review documents of
other Federal agencies will do so within the time limits specified by the
Director, OEPC. From thirty (30) to
forty-five (45) days are normally available for responding to other Federal agency
review requests. Whenever possible the
Director, OEPC, shall seek a forty-five (45) day review period. Further extensions shall be handled in
accordance with paragraph 7.7B(3) of this chapter.
(4) The
Department's review comments on other Federal agencies' environmental review
documents shall reflect the full and balanced interests of the Department in
the protection and enhancement of the environment. Lead bureaus shall be responsible for
resolving any intra-Departmental differences in bureau or office review
comments submitted to them. The OEPC is
available for guidance and assistance in this regard. In cases where agreement cannot be reached,
the matter shall be referred through channels to the AS/PMB with attempts to
resolve the disagreement at each intervening management level. The OEPC will assist in facilitating this
process.
B. Processing
Environmental Reviews:
(1) The
OEPC shall secure and distribute sufficient copies of environmental review
documents for Departmental review. Bureaus
and offices should keep the OEPC informed as to their needs for review copies,
which shall be kept to a minimum, and shall develop internal procedures to
efficiently and expeditiously distribute environmental review documents to
reviewing offices.
(2) Reviewing
bureaus and offices which cannot meet the review schedule shall so inform the
lead bureau and shall provide the date that the review will be delivered. The lead bureau shall inform the OEPC in
cases of headquarters-level response, or the Regional Environmental Officer in
cases of field-level response, if it cannot meet the schedule, why it cannot,
and when it will. The OEPC or the
Regional Environmental Officer shall be responsible for informing the other
Federal agency of any changes in the review schedule.
(3) Reviewing offices shall route their review comments through channels to the lead bureau, with a copy to the OEPC. When, in cases, of headquarters-level response, review comments cannot reach the lead bureau within the established review schedule, reviewing bureaus and offices shall send a copy marked "Advance Copy" directly to the lead bureau. Review comments shall also be sent to the lead bureau by electronic means to facilitate meeting the requesting agency’s deadline.
(4) In cases
of headquarters-level response:
(a) The
lead bureau shall route the completed comments through channels to the OEPC in
both paper copy and electronic word processor format. Copies shall be prepared and attached for all
bureaus and offices from whom review comments were requested, for the OEPC, and
for the Regional Environmental Officer when the review pertains to a project
within a regional jurisdiction. In
addition, original copies of all review comments received or documentation that
none were provided shall accompany the Department's comments through the
clearance process and shall be retained by the OEPC.
(b) The
OEPC shall review, secure any necessary additional surnames, surname, and
either sign the Department’s comments or transmit the Department's comments to
another appropriate Secretarial Officer for signature. Upon signature, the OEPC shall transmit the
comments to the requesting agency.
(5) In
cases of field-level response:
(a) The
lead bureau shall provide the completed comments to the appropriate Regional
Environmental Officer in both paper-copy and electronic word processor
format. In addition, original copies of
all review comments received or documentation that none were provided shall be
attached to the paper copy.
(b) The
Regional Environmental Officer shall review, sign, and transmit the
Department's comments to the agency requesting the review. In addition they shall reproduce and send the
Department's comments to the regional bureau reviewers. The entire completed package including the
bureau review comments shall be sent to the OEPC for recording and filing.
(c) If
the Regional Environmental Officer determines that the review involves policy
matters of Secretarial significance, they shall not sign and transmit the
comments as provided in subparagraph (b) above, but shall forward the review to
the OEPC in headquarters for final disposition.
C. Referrals
of Environmentally Unsatisfactory Proposals to the Council on Environmental
Quality
(1) Referral
to CEQ is a formal process provided for in the CEQ Regulations (40 CFR
1504). It is used sparingly and only
when all other administrative processes have been exhausted in attempting to
resolve issues between the project proponent and one or more other Federal
agencies. These issues must meet certain
criteria (40 CFR 1504.2), and practice has shown that these issues generally
involve resource concerns of national importance to the Department.
(2) A
bureau or office intending to recommend referral of a proposal to CEQ must, at
the earliest possible time, advise the proponent Federal agency that it
considers the proposal to be a possible candidate for referral. If not expressed at an earlier time, this
advice must be outlined in the Department’s comments on the draft EIS.
(3) CEQ
referral is a high level activity that must be conducted in an extremely short
time frame. A referring bureau or office
has 25 days after EPA has published a notice of availability of the final EIS
in the Federal Register in which to file the referral unless an
extension is granted per 40 CFR 1504.3(b).
The referral documents must be signed by the Secretary of the Interior.
(4) Additional review guidance may be made available as necessary to efficiently manage this activity. Bureau reviewers should review information on the OEPC website at http://www.doi.gov/oepc and consult with the OEPC for the most current review guidance.