.01 Founding Legislation. The National Environmental
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) is
the foundation of modern American environmental protection
in the United States and its commonwealths, territories,
and possessions. NEPA requires that Federal agency
decisionmakers, in carrying out their duties, use all
practicable means to create and maintain conditions under
which people and nature can exist in productive harmony
and fulfill the social, economic, and other needs of
present and future
generations of Americans. NEPA provides a mandate and a framework for Federal
agencies to consider all reasonably foreseeable environmental effects of their
proposed actions and to involve and inform the public
in the decisionmaking process.
.02 Subjects Addressed by this Order.
a. The Order describes NOAA’s policies, requirements, and procedures
for complying with NEPA and the implementing regulations issued by the Council
on Environmental Quality (CEQ) as codified in Parts 1500-1508 of Title 40 of
the Code of Federal Regulations (40 CFR Parts 1500-1508) and those issued by
the Department of Commerce (DOC) in Department Administrative Order (DAO) 216-6,
Implementing the National Environmental Policy Act. The Order incorporates
the requirements of Executive Order (E.O.) 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations. Also,
the Order reiterates provisions to E.O. 12114, Environmental Effects Abroad
of Major Federal Actions, as implemented by DOC in DAO 216-12, Environmental
Effects Abroad of Major Federal Actions.
b. Certain subjects addressed in this Order warrant special emphasis
at the beginning. The following warrant such emphasis:
1. NOAA’s policy has been, and continues to be, that the scope
of its analysis will be to consider the impacts of actions on the marine environment
both within and beyond the U.S. Exclusive Economic Zone (EEZ). (See
Sections 3.02 and 7.01 of this Order.)
2. A proposed action, in conceptual stages, does not require an environmental
review until it has an established goal and is preparing to make a decision
on how to establish that goal. At that stage, the proposed action
is subject to environmental review.
3. This Order addresses any Federal action whose effects may be major
and are potentially subject to NOAA’s control and responsibility. (Examples
of such are provided in Sections 4.01m. and 6.01a. of this Order.)
.03 Revisions. This issuance is a complete revision and update
to the Order. Major changes include: incorporation of the requirements
of E.O. 12898 and E.O. 13112; addition and expansion of specific guidance regarding
categorical exclusions, especially as they relate to endangered species, marine
mammals, fisheries, habitat restoration, and construction activities; expansion
of guidance on considering cumulative impacts and tiering in the environmental
review of NOAA actions; and inclusion of a NOAA policies statement regarding
the fulfillment of NEPA requirements. Revisions also have been made
to format and content to promote clarity and ease of use.
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SECTION 2. BACKGROUND.
.01 Authorities and References.
a. National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321
et seq.
b. CEQ Regulations for Implementing the Procedural Provisions of the
National Environmental Policy Act, as codified at 40 CFR Parts 1500 to
1508.
c. E.O. 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations.
d. E.O. 13112, Invasive Species.
e. E.O. 13089, Coral Reef Protection.
f. DAO 216-6, Implementing the National Environmental Policy Act.
g. E.O. 12114, Environmental Effects Abroad of Major Federal Actions.
h. DAO 216-12, Environmental Effects Abroad of Major Federal Actions.
.02 Responsibilities.
a. NEPA Coordinator. The NEPA Coordinator, within NOAA’s
Office of Policy and Strategic Planning, is responsible for ensuring NEPA compliance
for NOAA. To accomplish, the NEPA Coordinator shall:
1. review and provide final clearance for all NEPA environmental review
documents covered by this Order;
2. after providing final clearance, sign all transmittal letters
for NEPA environmental review documents disseminated for public review;
3. develop and recommend national policy, procedures, coordination actions
or measures, technical administration, and training necessary to ensure NOAA’s
compliance with NEPA;
4. provide liaison between NOAA and the CEQ, including consulting with
CEQ on emergencies and making pre-decision referrals to CEQ;
5. provide liaison with the Environmental Protection Agency (EPA) on
NEPA matters; and
6. provide general guidance on preparation of NEPA documents, which
includes: approving criteria regarding the appropriate document to be prepared;
working with Line, Staff, and Program Offices (LO/SO/PO) and their designated
Responsible Program Managers (RPMs) to establish categorical exclusions; establishing
and/or approving criteria to define "significant"; providing consultation,
as requested; coordinating NOAA’s comments on EISs prepared by other
Federal agencies; and monitoring DOC activities for NEPA compliance.
b. Assistant Administrators and SO/PO Directors. Subject to concurrence
by the NEPA Coordinator, the Assistant Administrators (AAs), SO/PO Directors,
or their delegates, through the designated RPM, are responsible for determining
whether Federal actions undertaken, including those undertaken by Federal,
state, local, or tribal governments in conjunction with the agency, are assessed
in accordance with the NEPA process or are excluded from that process. The
AAs and SO/PO Directors shall:
1. designate an RPM for each proposed action subject to the NEPA process
within their functional area, and provide the NEPA Coordinator with the RPM’s
name, title, telephone number, and specific action for which s/he is responsible;
and
2. as appropriate, provide the NEPA Coordinator with the name, title,
and telephone number of any individual who has been delegated signature
authority for approving and transmitting relevant materials to the NEPA Coordinator
on behalf of the AA or SO/PO Director, in accordance with this Order.
c. Responsible Program Manager (RPM). The RPM is the individual
designated by the AA or SO/PO Director to carry out specific proposed actions
in the NEPA process within an assigned functional area. The RPM may be
a Regional Administrator, a Science Center Director, a Laboratory Director,
or a program director within a Line, or Staff, or Program Office. The
designated RPM, subject to approval of the AA or SO/PO Director or delegate,
and subject to concurrence by the NEPA Coordinator, shall:
1. determine whether Federal actions undertaken, including those undertaken
by Federal, state, local or tribal governments in conjunction with the
agency, are assessed in accordance with the NEPA process or are excluded from
that
process; and
2. determine the appropriate type of environmental review needed and
submit all NEPA documents and associated letters and memoranda to the appropriate
AA or SO/PO Director or delegate for transmittal to the NEPA Coordinator
in compliance with this Order and other related authority.
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SECTION 3. NOAA POLICIES.
.01 In meeting the requirements of NEPA, it is NOAA’s policy to:
a. fully integrate NEPA into the agency planning and decisionmaking
process;
b. fully consider the impacts of NOAA’s proposed actions on the
quality of the human environment;
c. involve interested and affected agencies, governments, organizations
and individuals early in the agency planning and decisionmaking process when
significant impacts are or may be expected to the quality of the human environment
from implementation of proposed major Federal actions; and
d. conduct and document environmental reviews and related decisions
appropriately and efficiently.
.02 NOAA’s policy has been, and continues to be, that the scope
of its analysis will be to consider the impacts of actions on the marine
environment both within and beyond the U.S. Exclusive Economic Zone (EEZ).
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SECTION 4. DEFINITIONS.
.01 Much of the terminology listed in this Section and elsewhere in this
Order is derived from the authorities and references listed in Section 2 of this
Order, particularly the CEQ’s NEPA regulations. To ensure full compliance,
the CEQ regulations should be consulted for comprehensive explanations of the
terms. References to relevant CEQ terminology, as codified in 40 CFR 1500
et seq., are provided after each
definition, where appropriate.
a. Amendment. A change to a management plan or regulation required
by various statutes such as the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act, or MSFCMA) and the National Marine Sanctuaries Act
(NMSA). A management plan amendment could be prepared to achieve a specific
goal for a fishery or a marine sanctuary. Amendments may include regulations
necessary to carry out management objectives. A regulatory amendment
could clarify the intent of a Regional Fishery Management Council (RFMC) established
by the Magnuson-Stevens Act or interpret broad terms or measures contained
in existing fishery management plans (FMPs). Amendments must go through
standard rulemaking procedures under the Administrative Procedure Act (APA)
and must include the appropriate environmental analysis under NEPA.
b. Applicant. Any party who may apply to NOAA for a Federal permit,
funding, or other approval of a proposal or action and whose application should
be accompanied by an environmental analysis. Depending on the program,
the applicant could be an individual, a private organization, or a Federal,
state, tribal, territorial, or foreign governmental body. RFMCs are
not considered applicants because of their unique status under Federal
law.
c. Categorical Exclusion (CE). Decisions granted to certain categories
of actions that individually or cumulatively do not have the potential to pose
significant impacts on the quality of the human environment and are therefore
exempted from both further environmental review and requirements to prepare
environmental review documents (40 CFR 1508.4). The main text of this
Order presents specific actions and general categories of actions found to
warrant a CE. CEs may not be appropriate when the proposed action
is either precedent-setting or controversial, although such a determination
must be made on a case-by-case basis (see Sections 5.06 and 6.01 of this
Order).
d. Council on Environmental Quality (CEQ). Organization within
the Executive Office of the President charged with monitoring progress toward
achieving the national environmental goals as set forth in NEPA. The
CEQ promulgates regulations governing the NEPA process for all Federal
agencies.
e. Cumulative Impacts. Cumulative impacts are those combined effects
on quality of the human environment that result from the incremental impact
of the action when added to other past, present, and reasonably foreseeable
future actions, regardless of what Federal or non-Federal agency or person
undertakes such other actions (40 CFR 1508.7, 1508.25(a), and 1508.25(c)). Cumulative
impacts can result from individually minor but collectively significant
actions taking place over a period of time.
f. Emergency Action. Circumstances that require an action with
significant environmental consequences be taken without observing CEQ regulations. In
these cases, the Federal agency taking the action should consult with CEQ
regarding alternative arrangements for substitute environmental review
procedures.
g. Environmental Assessment (EA). A concise public document that
analyzes the environmental impacts of a proposed Federal action and provides
sufficient evidence to determine the level of significance of the impacts. The
EA shall include a brief analysis of the environmental impacts of the proposed
action and its alternatives. An EA will result in one of two determinations: 1)
an EIS is required; or 2) a Finding of No Significant Impact (FONSI) (40
CFR 1508.9).
h. Environmental Impact Statement (EIS). A detailed written
statement required by NEPA Section 102(2)(C) prepared by an agency if a proposed
action significantly impacts the quality of the human environment. The
EIS is used by decisionmakers to take environmental consequences into account. It
describes a proposed action, the need for the action, alternatives considered,
the affected environment, the environmental impacts of the proposed action,
and other reasonable alternatives to the proposed action. An EIS is prepared
in two stages: a draft and a final. Either stage of an EIS may be
supplemented (40 CFR 1502.9(c) and Section 4.01y. of this Order).
i. Environmental Review. The analysis undertaken by the RPM to:
1) identify the scope of issues related to the proposed action; 2) make decisions
that are based on understanding the environmental consequences of the proposed
action; and 3) determine the necessary steps for NEPA compliance. The
environmental review process could result in the preparation of one or
more of the NEPA documents discussed in Section 5. of this Order.
j. Exempted Actions. Certain Federal actions may be exempted from
complying with NEPA if such actions are specifically exempted by legislation
or have been found to be exempted by the judicial process. For example,
listing and delisting actions under Section 4(a) of the Endangered Species
Act (ESA) have been determined by the judicial system to be exempt from
NEPA.
k. Finding of No Significant Impact (FONSI). A short NEPA document
that presents the reasons why an action will not have a significant impact
on the quality of the human environment and, therefore, will not require preparation
of an EIS. A FONSI must be supported by the EA, and must include,
summarize, attach or incorporate by reference the EA (40 CFR 1508.13).
l. Human Environment. The human environment is defined by CEQ
(40 CFR 1508.14) as including the natural and physical environment and the
relationship of people with that environment. This means that economic
or social effects are not intended by themselves to require preparation of
an EIS. However, when an EIS is prepared and economic or social and
natural or physical environmental impacts are interrelated, the EIS must
discuss all
of these impacts on the quality of the human environment.
m. Major Federal Action. An activity, such as a plan, project
or program, which may be fully or partially funded, regulated, conducted, or
approved by a Federal agency. "Major" reinforces, but does not have a
meaning independent of "significantly" as defined in Section 4.01.x. and 6.01.
of this Order. Major actions require preparation of an EA or EIS unless
covered by a CE (40 CFR 1508.18). CEQ's definition of "scope" regarding
the type of actions, the alternatives considered, and the impacts of the
action should be used to assist determinations of the type of document
(EA or EIS)
needed for NEPA compliance (40 CFR 1508.25).
n. Management Plan. A Federal action promulgated under statutes
such as the Magnuson-Stevens Act, NMSA, or other statutes, that describes a
resource or resources, the need for management, alternative management strategies,
changes to management measures, possible consequences of such alternatives,
and select recommended management measures. Included are FMPs and marine
sanctuary plans prepared or implemented by NOAA. Such plans may incorporate
a NEPA document into a single consolidated package. Plans not mandated
by statute, e.g., habitat conservation plans and restoration plans, do not
have regulations associated with them. For purposes of NEPA, their
impacts are analyzed in the same manner as statutory plans.
o. Mitigation. Mitigation measures are those actions proposed
to: avoid environmental impacts altogether; minimize impacts by limiting
the degree or magnitude of the action; rectify the impact by repairing,
rehabilitating, or restoring the affected environment; reduce or eliminate
the impact over
time by preservation; and/or compensate for the impact.
p. NEPA Document. An EA, FONSI, draft EIS (DEIS), supplement to
a DEIS, final EIS (FEIS), supplement to a FEIS, or a Record of Decision (ROD). Consistent
with NOAA’s practice of issuing a memorandum to document the CE decision
for many NOAA actions, the memorandum issued documenting the CE is considered
a NEPA document.
q. Non-indigenous species. Any species or other viable biological
material that enters an ecosystem beyond its historic range, including any
such organism transferred from one country to another. Non-indigenous
species include both exotics and transplants.
r. Notice of Intent (NOI). A short Federal Register announcement
of agency plans to prepare an EIS. The notice may be published separately
or combined with other announcements, e.g., with an Advanced Notice of
Proposed Rulemaking or with an RFMC meeting notice (Exhibit
4 to this Order and 40 CFR 1508.22). The NOI shall: 1)
describe the proposed action and possible alternatives; 2) describe the
proposed scoping
process, including whether, when and where any scoping meetings will be
held; and 3) state the contact to whom questions should be addressed regarding
the action and the EIS.
s. Project. A Federal action such as a grant, contract, loan,
loan guarantee, vessel capacity reduction program, land acquisition, construction
project, license, permit, modification, regulation, or research program that
involves NOAA’s review, approval, implementation, or other administrative
action.
t. Record of Decision (ROD). A public document signed by the agency
decisionmaker following the completion of an EIS. The ROD states the
decisions, alternatives considered, the environmentally preferable alternative(s),
factors considered in the agency’s decisions, mitigation measures
that will be implemented, and whether all practicable means to avoid or
minimize
environmental harm have been adopted (40 CFR 1505.2).
u. Responsible Program Manager (RPM). The person with primary
responsibility to determine the need for and ensure the preparation of
any NEPA document (see Section 2.02c. of this Order).
v. Rulemaking. A prescribed procedure for implementing regulations
or management measures authorized under Federal laws such as the Magnuson-Stevens
Act, ESA, Marine Mammal Protection Act (MMPA), or Coastal Zone Management Act
(CZMA). Rules may be promulgated independent of plans and permits. Examples
include regulations for turtle excluder device, approaches to right whales
and protection of sea lion rookeries. Rulemaking procedures must be in
accordance with any specific guidelines established under the authorizing law
and with the APA. Rulemaking actions are also subject to the provisions
of other statutes, such as NEPA.
w. Scoping. An early and open process for determining the scope
of issues to be addressed and identifying the significant issues related
to a proposed action (40 CFR
1501.7).
x. Significant Impact. A measure of the intensity and the context
of effects of a major Federal action on, or the importance of that action to,
the human environment (40 CFR 1508.27). "Significant" is a function of
the short-term, long-term, and cumulative impacts, both positive and negative,
of the action on that environment. Significance is determined according
to the general guidance in Section 6.01 of this Order. Specific criteria
(Section 6.02 (a) - (i) of this Order) are established to expand the general
conditions for determining the significance and the appropriate course of action. Determinations
of non-significance will be made by the RPM but reviewed by the NEPA Coordinator
prior to clearance. All additional criteria for "significant" must
be approved by the NEPA Coordinator and published in the Federal Register
as amendments
to this Order (40 CFR 1508.27).
y. Supplemental Environmental Impact Statement (SEIS). A NEPA
document prepared to amend an original EIS when significant change in the action
is proposed beyond the scope of environmental review in the original EIS, or
when significant new circumstances or information arise that could affect the
proposed action and its environmental impacts (40 CFR 1502.9(c)). SEISs
may also be necessary when significant changes to an action are proposed
after a FEIS has been released to the public.
z. Tiering. Tiering refers to the coverage of general matters
in broader EISs (such as a national program or policy statement) with subsequent
narrower statements or environmental reviews (such as regional or area-wide
program environmental statements or ultimately site-specific statements) incorporating
by reference the general discussions in the broad statement and concentrating
solely on the issues specific to the statement subsequently prepared. Use
of tiering is an alternative approach to NEPA analysis (Section 5.09c.
of this Order).
.02 Refer to Exhibit
1 for a list of the acronyms used throughout this Order.
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SECTION 5. IMPLEMENTING PROCEDURES.
.01 Applying the Environmental Review Process.
a. General. Environmental review is the process undertaken by
the RPM to identify the scope of environmental issues related to the proposed
action, to make decisions that are based on understanding the environmental
consequences of the proposed action, and to determine the necessary steps for
NEPA compliance (40 CFR 1500.2). Such an analysis must be undertaken
for any major Federal action that is subject to NEPA. A similar analysis
must be undertaken under E.O. 12114 for certain proposed major Federal actions
not otherwise subject to NEPA with environmental effects outside U.S. jurisdiction. See
Section 7.01 of this Order for guidance on NEPA compliance for international
treaties, commissions, and compacts. The procedures for NEPA compliance
with domestic laws, regulations, executive orders, and administrative orders
may differ depending on whether the proposed action is a management plan or
amendment, a research project, a construction project, regulation, or an emergency
action. Section 6. of this Order addresses these differences in detail.
b. Process.
1. The environmental review process includes all of the actions required
by CEQ in 40 CFR 1502 and 1503 for compliance with NEPA (Exhibit
2 to this Order). The process involves the following series of
actions accomplished by or under the direction of the RPM:
(a) define the proposed action;
(b) consider the nature and intensity of the potential environmental
consequences of the action in relation to the criteria and guidance provided
in this Order to determine whether the action requires an EIS, EA, or CE;
(c) prepare a CE memorandum, as appropriate;
(d) prepare an EA or initiate planning and for an EIS where an EIS is
known to be appropriate;
(e) prepare a FONSI (which ends the NEPA environmental review process
for actions found not to have a significant impact on the quality of the
human environment) or initiate planning for an EIS/SEIS based on the EA;
(f) publish a NOI to prepare an EIS/SEIS and formally scope key issues
in the EIS;
(g) conduct the scoping process to determine relevant issues;
(h) prepare a draft EIS/SEIS;
(i) publish a Notice of Availability (NOA) and distribute the draft
EIS/SEIS for 45-day public comment period;
(j) hold a public hearing(s), if appropriate, on the draft EIS/SEIS;
(k) incorporate public comments and responses to comments in a final
EIS/SEIS;
(l) publish a NOA and distribute the FEIS/SEIS for a 30-day “cooling
off” period and public comment; and
(m) release a ROD to the public.
2. To provide the maximum help in guiding the environmental review and
decision process, the environmental review is to be coordinated by the RPM
and initiated as early as possible in the planning process, regardless of whether
the RPM anticipates the need for an EA or EIS. In the case of uncertainty
regarding either preparation of the proper NEPA documents, or coordinating
environmental analyses required by other statutes, early consultation with
the NEPA Coordinator will assist the RPM in determining the best means for
NEPA compliance. Consultation with the NEPA Coordinator during the
early stages of document preparation should facilitate review and clearance
at later
stages of the decisionmaking process.
3. In those cases where programs or actions are planned by Federal or
non-Federal agency applicants as defined in Section 4.01b. of this Order, the
RPM will, upon request, supply potential applicants with guidance on the scope,
timing, and content of any required environmental review prior to NOAA involvement
(see Section 5.08 of this Order for more information). A listing
of some programs and actions commonly involving NEPA-related matters, and
their
corresponding
NOAA contact for obtaining further NEPA guidance, is found in Exhibit
3 to this Order.
4. RPMs should consult with this Order when their involvement is reasonably
foreseeable in an action or program proposed by a state or local agency
or by an Indian tribe that could be a major Federal action.
5. RPMs should consult with the NEPA Coordinator and this Order before
communicating with other Federal agencies regarding whether, and to what
extent, NOAA will become involved in developing proposals for such agencies,
or in
the preparation of NEPA documents and associated environmental reviews
initiated by such agencies.
6. When a proposed action involves several organizational units in NOAA,
the RPMs of each unit should jointly determine which RPM should take the lead
coordinating role in preparing environmental reviews and in assuming responsibility
for preparation of any NEPA documents. The NEPA Coordinator will
assist RPMs in developing a coordinated process for the action.
7. Where disagreements arise regarding NOAA's NEPA procedures for any
action, the NEPA Coordinator will make the final decision. A complete
statement of the NEPA Coordinator’s authorities and functions is
presented in Section 2.02a. of this Order.
c. Terminating the Process. The environmental review process may
be stopped at any stage if action or program goals change, support for a proposed
program or action diminishes, the original analysis becomes outdated, or other
special circumstances occur. Should an EIS be terminated after publication
of a DEIS, the EPA or CEQ, as appropriate, must be notified (see Section
5.04c.8. of this Order).
.02 Scoping and Public Involvement.
a. Purpose. The purpose of scoping is to identify the concerns
of the affected public and Federal agencies, states, and Indian tribes, involve
the public early in the decisionmaking process, facilitate an efficient EA/EIS
preparation process, define the issues and alternatives that will be examined
in detail, and save time by ensuring that draft documents adequately address
relevant issues. The scoping process reduces paperwork and delay
by ensuring that important issues are addressed early.
b. Public Involvement. Public involvement is essential to implementing
NEPA. Public involvement helps the agency understand the concerns of
the public regarding the proposed action and its environmental impacts, identify
controversies, and obtain the necessary information for conducting the environmental
analysis. RPMs must make every effort to encourage the participation
of affected Federal, state, and local agencies, affected Indian tribes, and
other interested persons throughout the development of a proposed action and
to ensure that public concerns are adequately considered in NOAA’s
environmental analyses of a proposed action and in its decisionmaking process
regarding that
action.
1. Public involvement may be solicited through: public hearings or public
meetings, as appropriate; solicitation of comments on draft and final NEPA
and other relevant documents; and regular contacts, as appropriate. The
RPM should encourage the RFMCs to include the NEPA document with the RFMC’s
public hearing documents to solicit early public review and involvement. The
RPM must provide public notice of NEPA-related hearings, public meetings, and
the availability of NEPA documents so as to inform interested or affected parties
(40 CFR 1506.6). Interested parties may obtain information and status
reports on EAs, EISs, and other elements of the environmental analysis process
from the RPM or the NEPA Coordinator. Public involvement is encouraged
in the review of EAs, which may not otherwise get adequate public input. To
the extent possible, EAs should be published or made available in conjunction
with proposed rules and plans subject to public review and comment.
2. RPMs will be guided by 40 CFR 1506.6 in providing adequate public
involvement in the environmental review process. In particular, RPMs
should use state "single points of contact" designated under E.O. 12372. A
current list of these contacts may be obtained from the NEPA Coordinator.
c. Scoping Process. Scoping is usually conducted shortly after
a decision is made to prepare an EIS. However, scoping is also encouraged
during the EA process when the need for an EIS is undetermined. As
part of the requirements of the scoping process, the actions described
in 40 CFR
1501.7(a), must be fulfilled when appropriate.
1. Formal scoping officially begins with publication in the Federal
Register of a NOI to prepare an EIS (40 CFR 1501.7), but may in practice
begin in the early stages of project development (Section 5.02d of this Order).
2. To the maximum extent practicable, comprehensive public involvement
and interagency and Indian tribal consultation should be sought to ensure the
early identification of significant environmental issues related to a proposed
action. Early consultation is an important opportunity to identify planning
efforts and environmental reviews done by others (e.g., other agencies, applicants,
RFMCs) that may provide important information for NOAA’s environmental
review process.
3. The scoping process should include, where relevant, consideration
of the impact of the proposed action on:
(a) floodplains and sites included in the National Trails and Nationwide
Inventory of Rivers, as required by Presidential Directive, August 2, 1979;
(b) sites nominated or designated by the Advisory Council on Historic
Preservation, as required by 36 CFR 800;
(c) any national marine sanctuary or national estuarine research reserve;
(d) habitat as described in: 1) the National Marine Fisheries Service's
1983 habitat conservation policy; and 2) the National Habitat Plan, “A
Plan to Strengthen the National Marine Fisheries Service National Habitat Program”,
August 30, 1996;
(e) affected state Coastal Zone Management Plans;
(f) the environmental and health impact on low-income and minority populations
as required by E.O. 12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations;
(g) the American Indian Religious Freedom Act;
(h) ESA Section 7 (16 U.S.C. 1531 et seq.);
(i) Section 305(b) of the MSFCMA (16 U.S.C. 1855 et seq.) regarding
adverse effects on essential fish habitat; and other appropriate laws and
policies; and
(j) nonindigenous species, including any direct impacts on living resources.
4. Scoping may be satisfied by many mechanisms, including: planning
meetings and public hearings; requests for public comment on public hearing
documents; discussion papers, and other versions of decision and background
environmental documents. Scoping meetings should inform interested parties
of the proposed action and alternatives and solicit their comments. If
the proposed action has already been subject to a lengthy development process
that has included early and meaningful opportunity for public participation
in the development of the proposed action, those prior activities can be substituted
for the scoping meeting component in NOAA’s environmental review
procedures.
d. Notice of Intent. The NOI to prepare an EIS or to hold a scoping
meeting should be published in the Federal Register as soon as practicable
after the need for an EIS has been determined.
1. The notice must include (40 CFR 1508.22):
(a) the proposed action and possible alternatives;
(b) a summary of NOAA's proposed scoping process, including logistics
for any meetings to be held; and
(c) the name and address of the RPM for further information about the
proposed action and the EIS.
2. Written and verbal comments must be accepted during the identified
comment period after publication of the NOI and must be considered in the environmental
analysis process. This period should be at least thirty (30) days
to provide an adequate opportunity for the public to comment.
3. When there is likely to be a lengthy period between the decision
to prepare an EIS and actual preparation of the DEIS, publication of the
NOI may be delayed until a reasonable time in advance of preparation of that
DEIS.
4. If an RPM decides not to pursue a proposed action after an NOI has
been published, a second NOI must be published to inform the public of
the change.
5. The NOI may be combined with similar notices required for preparation
of other documents (e.g., RFMC meeting notices; Exhibit
4 of this Order). This will minimize redundancy while still notifying
the public of proposed actions.
6. Multi-agency NOIs must be coordinated among the involved agencies. Each
agency must clear the NOI prior to publication.
.03 General Requirements for Environmental Assessments.
a. Purpose. The purpose of an EA is to determine whether significant
environmental impacts could result from a proposed action. An EA is appropriate
where environmental impacts from the proposed action are expected, but it is
uncertain that those impacts will be significant. An EA is also appropriate
as an initial step of the environmental review, where the impacts of the proposed
action may or may not be significant. The EA (defined at Section 4.01g.
of this Order) is the most common type of NEPA document. For guidance
in determining the environmental significance of a proposed action, consult
Sections 4.01w., and 6.01 of this Order. If the action is determined
to be not significant, the EA and resulting FONSI will be the final NEPA documents
required. If the EA concludes that significant environmental impacts
may be reasonably expected to occur, then an EIS must be prepared.
b. Contents. Because the environmental review in the EA provides
the basis for determining whether or not the proposed action is expected to
have a significant impact on the quality of the human environment, the EA must
address the appropriate factors as outlined in Section 6.01 of this Order. Additionally,
an EA must analyze the proposed action with respect to the laws and policies
regarding scoping issues listed under the discussion of scoping under Section
5.02c.3. of this Order. An EA must consider all reasonable alternatives,
including the preferred action and the no action alternative. Even the
most straightforward actions may have alternatives, often considered and rejected
in early stages of project development that should be discussed. In addition,
the EA and FONSI must clearly state whether they rely on, or tier off, a previous
NEPA document. As discussed in 40 CFR 1508.9, an EA must contain:
1. sufficient evidence and analysis for determining whether to prepare
an EIS or a FONSI, and to facilitate preparation of any needed EIS;
2. a brief discussion of the need for the action;
3. alternatives as required by Section 102(2)(E) of NEPA;
4. a brief discussion of the environmental impacts of the proposed action
and alternatives;
5. a listing of agencies and persons consulted;
6. a FONSI, if appropriate.
c. FONSI Determination. An EA that results in a FONSI completes
NEPA analysis for that action. When an EA results in a determination
that there may be potential significant impacts to the quality of the human
environment, a FONSI determination, by definition, is an impossibility and
shall not be proposed. Rather, the RPM may proceed directly with preparation
of an EIS without submitting the EA for the NEPA Coordinator’s approval. Early
review of draft environmental review documents by the NEPA Coordinator
may help avoid problems and expedite subsequent review of the EA with a
FONSI
determination or initiation of an EIS.
d. Mitigation. Mitigation measures used in determining a FONSI
for an EA may be relied upon only if they are imposed by statute or regulation
or submitted by an applicant or the agency as part of the original proposed
action. As a general rule, agencies should not rely on the possibility
of mitigation as a means of avoiding preparation of an EIS.
e. NOAA Review and Clearance.
1. The RPM must submit, through their AA/SO/PO Director to the NEPA
Coordinator, one copy of the EA, FONSI and original letter To All Interested
Government Agencies and Public Groups (Section 5.07 and Exhibit
6 of this Order) for review, clearance and signature prior to public
availability. The
FONSI, which must be attached to or incorporated into the final EA, notifies
governmental agencies and the public that the environmental impacts of the
proposed action have been determined by the RPM to be non-significant on the
quality of the human environment under NEPA, and thus an EIS will not be prepared. The
RPM should solicit input from other NOAA offices with expertise or jurisdiction
prior to submitting the EA for final NEPA Coordinator clearance. Although
some EAs are not generally distributed to the public, a cover letter must
be prepared in case a copy is requested.
2. In cases where the RPM has adequate time and where the EA would benefit
from greater public participation, a thirty (30) calendar day public review
and comment period is encouraged prior to a FONSI determination. If such
review and comment is utilized, the RPM may issue the EA in draft for public
comment, and later finalize it with the action. The RPM may consult with
the NEPA Coordinator to arrange alternative procedures for providing public
involvement, including various combinations of notices and mailings
(40 CFR 1506.6).
3. EAs should be submitted to the NEPA Coordinator at least three (3)
working days prior to the requested clearance date; less time may be sufficient
when the NEPA Coordinator has reviewed previous versions of the EA. After
NOAA’s clearance by the NEPA Coordinator, the RPM may publish a NOA in
the Federal Register for those EAs with national implications or with broad
interest to the public. In certain circumstances the NEPA Coordinator,
in consultation with the RPM, may require that the proposed action not be taken
until thirty (30) calendar days after the NOA has been published. This
may include circumstances where consulting agencies or the public have expressed
significant reservations, based on environmental concerns. EAs need
not be transmitted to EPA for filing.
.04 General Requirements for Environmental Impact Statements and Supplemental
Environmental Impact Statements.
a. Purpose.
1. The primary purpose of an EIS is to serve as an action-forcing device
to ensure that the policies and goals defined in NEPA are infused into the
ongoing programs and actions of the Federal government. An EIS must provide
a full and fair discussion of significant environmental impacts and inform
decisionmakers and the public of the reasonable alternatives which would avoid
or minimize adverse impacts or enhance the quality of the human environment. As
required by NEPA Section 102(2)(C), EISs are to be included in every recommendation
or report on proposals for legislation and for other major Federal actions
whose impacts may have a significant impact to the quality of the human environment. Federal
actions that the RPM determines are significant require an EIS (defined at
Section 4.01h. of this Order) or an SEIS (defined at Section 4.01y. of this
Order) if there is a significant change from an earlier EIS. Some projects
may be required by law to have an EIS completed for them, regardless of the
magnitude of impact. Consult Section 6.01 of this Order for specific
descriptions of types of actions considered significant to warrant an EIS.
2. Early public review and involvement in the environmental review process
is encouraged (Section 5.02b. of this Order). CEQ (40 CFR 1502.25) requires
that DEISs be prepared concurrent and integrated with studies and surveys required
by other Federal statutes. To meet this requirement, the RPM should
recommend that all NOAA programs and RFMCs integrate the NEPA document
with the public
hearing documents to better ensure adequate environmental review and opportunity
for public review of the proposed action as it is developed.
b. Contents. Should the RPM make a determination that significant
impacts to the quality of the human environment could result from a proposed
action, a draft EIS/SEIS must be prepared. For general guidance on
EIS procedures, refer to 40 CFR 1502.
1. As discussed in 40 CFR 1502.10-1502.18, the EIS/SEIS shall
contain:
(a) a cover sheet and table of contents;
(b) a discussion of the purpose and need for the action;
(c) a summary of the EIS, including the issues to be resolved, and in
the FEIS, the major conclusions and areas of controversy including those
raised by the public;
(d) alternatives, as required by Sections 102(2)(C)(iii) and 102(2)(E)
of NEPA;
(e) a description of the affected environment;
(f) a succinct description of the environmental impacts of the
proposed action and alternatives, including cumulative impacts;
(g) a listing of agencies and persons consulted, and to whom copies
of the EIS are sent;
(h) an ROD, in the case of a FEIS; and
(i) an index and appendices, as appropriate.
2. The EIS/SEIS cover sheet must clearly state whether it is a separate
EIS or an EIS consolidated with a management plan or amendment, and whether
the document supplements an earlier EIS.
3. It is NOAA and CEQ (40 CFR 1502.14(e)) policy to require identification
of the preferred alternative(s) in the draft EIS/SEIS, whenever such preferences
exist, and in the FEIS unless another law prohibits the expression of such
a preference. When preferred alternatives do not exist, the document
must provide a range of alternatives or other indication of the alternatives
most likely to be selected, thus informing the public of the likely final action
and its environmental consequences. The public is thus able to more
effectively focus its comments.
c. Public Review and Clearance. Environmental review and procedures
should run concurrently with other public review and comment periods (e.g.,
the FMP development and review process). The DEIS should be cleared by
the NEPA Coordinator, filed, and made available for public comment no later
than publication of other required documents (e.g., the public hearing draft
FMP/amendment). An SEIS must be prepared in certain cases under 40 CFR
1502.9. An SEIS must be prepared, filed, and distributed for public
comment as if it were an initial EIS.
1. Preliminary Review. A preliminary version of either the draft
or final EIS/SEIS should be submitted to the NEPA Coordinator for review and
comment at least one week before submission of the final NEPA review package
for clearance. Early review by the NEPA Coordinator helps to ensure a
more efficient process by avoiding last minute delays. The RPM should
solicit input from other NOAA offices with expertise or jurisdiction regarding
the proposed action prior to submitting the EIS for final NEPA Coordinator
clearance.
2. NEPA Review Package. The NEPA review package consists of the
draft or final EIS/SEIS, modified as necessary by the RPM in response to comments
received from the NEPA Coordinator and other appropriate NOAA offices, and
the appropriate transmittal memoranda. The deadline for the NEPA Coordinator’s
receipt of the NEPA review package for final clearance is five days prior to
filing at EPA; less time may be sufficient in those cases where the NEPA Coordinator
has reviewed earlier versions. One copy of the EIS/SEIS and two letters,
one transmitting the document to all other reviewers and the other filing the
document with EPA, must be prepared by the RPM for the signature of the NEPA
Coordinator. The format and content of these letters are addressed
in Section 5.07 of this Order (see Exhibits
6 and 7 to
this Order.) After the NEPA Coordinator signs the letters, the originating
RPM will take all further actions, including filing the document at EPA and
distributing it to interested parties. In the case of an SEIS, the
transmittal letters to EPA and the public must state the title and publication
date of
the initial EIS to which the SEIS relates.
3. Filing at Environmental Protection Agency (EPA). The deadline
for filing at EPA is 3:00 p.m. each Friday for publication by EPA of an NOA
in the Federal Register the following Friday. Five bound copies of draft
and final EISs are required by EPA headquarters at the time of filing. An
additional three bound copies shall be sent to each affected EPA region. If
the document is a programmatic EIS (an EIS on an entire program, e.g., deep
seabed mining program or the Next Generation Radar (NEXRAD) program) that could
affect a large part of the nation, more copies are required. Specific
guidance on the number of copies needed for filing is available from the NEPA
Coordinator. An equivalent number of any source documents, appendices,
or other supporting analyses must also be submitted to EPA headquarters at
filing. All EIS copies submitted to EPA headquarters must be bound
and be identical in form and content to the copies distributed or made
available to the public and other interested parties.
4. Notice of Availability. Once NOAA files an EIS/SEIS with EPA,
EPA will publish an NOA in the Federal Register. As noted above, all
public review and "cooling off" periods begin the day of publication of the
NOA. It is the Office of the Federal Register’s policy that
a review period will not end on a weekend or holiday unless a requirement
of
law and/or
specifically requested.
5. Public Distribution. On the same date as the document is filed
with EPA, copies of each DEIS and transmittal letter to interested parties
must be sent to all Federal, State, and local government agencies, public groups,
and individuals who may have an interest in the proposed action. Copies
of each final EIS/SEIS must be sent to parties who submitted substantial comments
on the draft EIS/SEIS, interested parties specifically requesting a copy, and
others as determined by the RPM. Source documents, appendices, and other
supporting information should be made available to the public when the RPM
determines that reviewers would benefit from the additional information. The
EIS/SEIS and related documents must be made available for public inspection
at locations deemed appropriate by the RPM, such as public libraries or state “single
points of contact.”
6. Public Comment. The public comment period on draft EIS/SEISs
should be at least forty-five (45) days, unless a specific exemption is granted
by EPA, through the NEPA Coordinator, for a different time period. A
final EIS/SEIS must include all substantive comments or summaries of comments
received during the public comment period of the draft EIS/SEIS. Summaries
of comments are allowed when the comments received are exceptionally voluminous
or repetitive. Comments must be responded to in an appropriate manner
in the FEIS, as required under 40 CFR 1503.4. A final agency decision
on the proposed action may not be made or recorded less than thirty (30) days
after the NOA for the FEIS is published in the Federal Register (the “cooling
off” period), unless an exception is granted by EPA through the NEPA
Coordinator. Public comment and “cooling off” periods
for draft and final SEISs are the same as for the initial draft and the
final
EIS.
7. Record of Decision. The ROD may not be made or filed until
after thirty (30) days from the published date of the NOA for the FEIS. The
ROD must be a separate document from the FEIS, but may be integrated into other
agency decision documents such as a notice of final regulations or a management
plan. The ROD is a public record and must be made available through
appropriate public notice as required by 40 CFR 1506.6(b); however, there
is no specific
requirement for publication of the ROD itself, either in the Federal Register
or elsewhere.
8. Terminating the Process. The environmental review process may
be stopped at any stage if action or project goals change, support for a proposed
action diminishes, the original analysis becomes outdated, or other special
circumstances occur. If a DEIS has already been filed with the EPA, the
RPM must notify the NEPA Coordinator of any contemplated termination of the
environmental review process prior to completion of the FEIS. If the
environmental review process is terminated at this point, the FEIS will not
be prepared. After the RPM’s decision to terminate the environmental
review process and NEPA Coordinator notification, the termination must be announced
in the Federal Register. Project terminations must be explained in writing
by the RPM, through the NEPA Coordinator, to EPA so that EPA may withdraw the
DEIS and close its file on the action. In addition, for supplemental
NEPA documents only, the NEPA Coordinator must notify CEQ if the process
stops after issuance of a draft SEIS but before issuance of the final.
d. Special Circumstances.
1. Legislative EIS. A legislative EIS (LEIS) is a detailed statement
required by law to be included in a recommendation or report on a legislative
proposal to Congress, and is considered part of the formal transmittal of a
legislative proposal to Congress (see 40 CFR 1506.8). It may, however,
be transmitted up to 30 days after initial transmittal to allow time for completion
of an accurate statement which can serve as the basis for public and congressional
debate. It must be available in time for Congressional hearings and deliberations. Preparation
of an LEIS must conform to the requirements of an EIS except as follows:
(a) there need not be a scoping process;
(b) the statement should be prepared in the same manner as a DEIS, but
should be considered the “detailed statement” required by statute. When
any of the conditions identified in 40 CFR 1506.8 exist, both the draft
and final EIS on the legislative proposal must be prepared and circulated
as
provided by 40 CFR 1503.1 and 1506.10; and
(c) comments on the LEIS must be given to the lead agency, which will
forward them along with the agency’s responses to the Congressional
committees with jurisdiction.
2. Shortened public review period. In certain cases, usually characterized
by pending emergencies, by negative socio-economic impacts, or by threats to
human health and safety, the RPM may request the NEPA Coordinator’s assistance
in shortening the public review and “cooling off” periods for EISs,
SEISs or FEISs. Exemptions for EISs and FEISs may be granted only by
EPA, and the CEQ is responsible for granting exemptions for SEISs. All
requests must go through the NEPA Coordinator prior to referral to EPA
or CEQ.
.05 General Requirements for Categorical Exclusions.
a. Purpose. Categorical exclusions are intended to exempt qualifying
actions from environmental review procedures required by NEPA. A CE is
appropriate where a proposed action falls into a category of actions that do
not individually or cumulatively have a significant impact on the quality of
the human environment as determined through an environmental review by the
agency. Where a proposed action is new, under extraordinary circumstances
in which normally excluded actions may have a significant environmental impact,
or the potential environmental impacts are controversial, an EA or EIS is required. RPMs
must consider the cumulative effects of a number of similar actions before
granting a CE.
b. Determining Appropriateness for Use of Categorical Exclusions. The
proposed action should be evaluated to determine the appropriateness of the
use of a CE. That analysis should determine if: 1) a prior NEPA analysis
for the “same action demonstrated that the action will not have significant
impacts on the quality of the human environment (considerations in determining
whether the proposed action is the “same” as a prior action
may include, among other things, the nature of the action, the geographic
area
of the action, the species affected, the season, the size of the area,
etc.); or 2) the proposed action is likely to result in significant impacts
as defined
in 40 CFR 1508.27.
c. Exceptions for Categorical Exclusions. The preparation of an
EA or EIS will be required for proposed actions that would otherwise be
categorically excluded if they involve a geographic area with unique characteristics,
are
subject of public controversy based on potential environmental consequences,
have uncertain environmental impacts or unique or unknown risks, establish
a precedent or decision in principle about future proposals, may result
in cumulatively significant impacts, or may have any adverse effects upon endangered
or threatened species or their habitats.
d. NOAA Review and Clearance. The RPM should consult with the
NEPA Coordinator while planning actions that may be appropriate for a CE and
notify the NEPA Coordinator of actions that receive a CE. Documentation
of the basis for a determination of the appropriateness for a CE must be sent
to the NEPA Coordinator no later than three (3) months after the subject action
has occurred. If the action is determined to be a CE, a brief statement
so indicating should be included within an appropriate decision memorandum
(see Exhibits
5a and 5b to
this Order). The RPM and the NEPA Coordinator can require an EA or EIS
for an action normally covered by a CE if the proposed action could result
in any significant impacts as described in Sections 4.01x. and 6.01 of this
Order. When appropriate, the RPM should consult with states while
planning actions that may be appropriate for a CE and notify such states
of actions
that receive a CE, as described in Sections 5.09e. of this Order.
.06 Emergency Actions.
a. Emergency actions may include measures to:
1. implement management or regulatory plans or amendments;
2. implement rules to protect threatened or endangered species or marine
mammals;
3. establish or implement certain restoration projects; and
4. take other actions of an immediate nature (e.g., fishery management
actions without an FMP).
b. Emergency actions are subject to the same NEPA requirements as non-emergency
actions. Emergency actions are subject to the environmental review procedures
outlined in Section 5.06 of this Order, requirements for public involvement
and scoping set forth in Section 5.02 of this Order, and requirements and guidance
of Sections 5.03, 5.04, and 5.06 of this Order concerning the type of environmental
review documents necessary to comply with NEPA. Despite the emergency
nature of a proposed action, RPMs must maintain contact with state government
agencies to ensure that all state concerns are addressed within the time constraints
of the emergency action. If time constraints limit compliance with
any aspect of the environmental review procedures, the RPM should contact
the NEPA
Coordinator to determine alternative approaches, as discussed in this Section.
c. The RPM should determine whether an EA or an EIS will be prepared
for emergency actions. The emergency action may be appropriate for a
CE if the RPM determines that the action is below the threshold criteria for "controversial," "major," and "significant" that
apply to "non-emergency" actions (Sections 4.01n. and 4.01w. of this Order). In
the event of uncertainty regarding the necessary NEPA document for an emergency
action, the RPM should consult with the NEPA Coordinator as early as possible.
d. Because an EA or CE has no statutory time requirement for public
notice or comment, emergency actions that are appropriate for a CE or require
an EA leading to a FONSI should not be delayed by any time constraints or requirements
established by NEPA or this Order. If the RPM determines that the emergency
action requires preparation of an EIS, the RPM should determine whether the
requirements associated with draft and final EIS preparation, filing, and public
review would delay implementation of the emergency action and endanger achievement
of the objectives of the action. If preparation of the EIS would not
delay the emergency action sufficiently to prevent attaining its objectives,
an EIS must be prepared according to the environmental review procedures before
the emergency action takes effect. If the RPM determines that time or
EIS preparation may limit attaining the objectives of the emergency action,
the RPM should ask the NEPA Coordinator to consult CEQ regarding alternative
arrangements for NEPA compliance. Making alternative arrangements
with CEQ is a seldom used practice and the RPM should make every effort
to avoid
undertaking this approach.
e. Alternative arrangements for NEPA compliance must satisfy the CEQ
regulations on emergencies (40 CFR 1506.11). Possible arrangements include
shortened public review periods, review periods concurrent with effective emergency
regulations but completed prior to implementation of final regulations,
or staff assistance from the NEPA Coordinator in preparing necessary documents. Alternative
arrangements with CEQ is a seldom used approach by federal agencies and
the NEPA Coordinator will only undertake this approach for actions necessary
to control the immediate impacts to the quality of the human environment
resulting
from the emergency action. Other actions remain subject to standard NEPA
requirements and review.
.07 Guidance on Transmittal Letters for EAs and EISs. EAs and
EISs should adhere to the following guidance for preparation (examples
of transmittal letters are attached as Exhibits
6-9):
a. the RPM will prepare all letters on "Office of the Under Secretary" letterhead;
b. letters will be dated after being signed by the NEPA Coordinator;
and
c. the RPM will fill in all appropriate blanks in the sample letter
formats.
.08 Actions Proposed by Applicants. Any applicant to NOAA regarding
a proposed action (e.g., permit, funding, license, or approval of a proposal
or action) must consult with NOAA as early as possible to obtain guidance
with respect to the level and scope of information needed by NOAA to comply
with
NEPA.
a. The RPM should begin the environmental review process as soon as
possible after receiving the application and shall evaluate and verify
the accuracy of information received from an applicant.
b. The RPM should complete any NEPA documents, or evaluation of any
EA prepared by the applicant, before making a final decision on the application.
.09 Streamlining Approaches to NEPA Compliance.
a. Programmatic Documents. CEQ encourages agencies to use program,
policy, or plan EISs, (i.e., programmatic EISs) to eliminate repetitive discussion
of the same issues (40 CFR 1500.4(i)). A programmatic environmental review
should analyze the broad scope of actions within a policy or programmatic context
by defining the various programs and analyzing the policy alternatives under
consideration and the general environmental consequences of each. Specific
actions that are within the program or under the policy should be analyzed
through project-specific environmental review documents. A project-specific
EIS or EA need only summarize the issues discussed in the broader statement
with respect to the specific action and incorporate discussion from that environmental
review by reference. The principal discussion should concentrate
on the issues specific to the subsequent action.
b. Generic Documents. When preparing statements on broad actions
(including proposals by more than one agency), EISs can be used to group and
analyze several actions that have relevant similarities, such as common timing,
impacts, alternatives, methods of implementation, or subject matter (40 CFR
1502.4(c)). Appropriate actions could include clear-cutting, gear impacts,
dredging, or other broad activity. For some types of actions, it
may be appropriate to examine cumulative impacts through the use of a generic
EIS, rather than preparing a large number of project-specific EAs or EISs.
c. Tiering. Tiering (Section. 4.01z) refers to a stepped approach
to environmental review under NEPA. Tiering involves the review of a
broad-scale agency action (such as a national program or policy) in a general
EIS with subsequent narrower environmental reviews (such as regional or area-wide
program environmental reviews or ultimately site-specific environmental reviews)
that incorporate by reference the general discussions in the broad environmental
review and concentrate solely on the issues specific to the statement subsequently
prepared. Tiering is appropriate when the sequence of environmental reviews
is: (a) from a program, plan, or policy EIS to a program, plan, or policy statement
or analysis of lesser scope or to a site-specific environmental review; (b)
from an EIS on a specific action at an early stage to a supplement or a subsequent
environmental review at a later stage. Tiering in such cases is appropriate
and encouraged because it helps the lead agency focus on the issues that
are ripe for decision and exclude from consideration issues already addressed
or
those that are premature for review.
d. Incorporation by Reference. CEQ guidance recommends incorporating
other materials by reference when the effect will be to cut down on the size
of an environmental review document without impeding agency and public review
of the action. The incorporated material shall be cited in the EA or
EIS and the document shall state how the referenced document or material can
be obtained. The contents of the referenced materials should be briefly
described. No material may be incorporated by reference unless it is
reasonably available for inspection by interested parties within the time allowed
for comment in the environmental review document. Material based on proprietary
data that are not available for review and comment should not be incorporated
by reference. Examples of information that may be incorporated by reference
include: “affected environment” chapters from previous
EISs when the affected environment for the proposed action has not undergone
noticeable
changes; and discussions of cumulative impacts of a proposed action, if
such impacts were discussed in a previous environmental review addressing
a similar
action (40 CFR 1502.21).
e. Cooperative Document Preparation. RPMs must cooperate with
other Federal, state and local agencies and Indian tribes to the maximum
extent practical to reduce duplication in document preparation.
1. Any applicable Federal and state environmental policy laws must be
followed in preparing joint documents. The degree to which Federal agencies
must adhere to local ordinances and codes is set forth in Public Law 100-678
(40 U.S.C. 601-616). Cooperation will include, where possible, joint
planning, environmental research, public hearings, and environmental review
documents (40 CFR 1506.2(b)). RPMs should work with the appropriate
state or local agencies as a joint lead agency in fulfilling the intent
of NEPA.
2. The CEQ regulations (40 CFR 1501.1(b)) emphasize cooperative consultation
among agencies before an EIS is prepared, rather than submitting adversarial
comments on a completed document. Upon the request of the lead agency,
any other Federal agency that has jurisdiction by law must be a cooperating
agency. In addition, any other Federal agency that has special expertise
with respect to any environmental issue that should be addressed in the statement
may be a cooperating agency upon request of the lead agency (40 CFR 1501.5
and 1501.6). An agency may also request to the lead agency that it be
designated as a cooperating agency. If NOAA determines that
its resource limitations preclude any involvement as a cooperating agency,
it
must so inform the requesting lead agency in writing and submit a copy
of the letter
to CEQ.
f. Adoption of Other Federal Documents.
1. The ultimate responsibility for NEPA compliance always falls on the
NOAA program proposing the Federal action, but NOAA may adopt an EA, DEIS,
or FEIS or portion thereof prepared by another Federal agency if the language
satisfies the standards of the CEQ regulations and this Order.
2. When adopting an entire EIS without change, the RPM should recirculate
the document as a FEIS. However, if the actions covered by the document
are changed in a potentially significant manner, the document should be
circulated as a draft and final (40 CFR 1506.3).
3. NOAA programs cannot adopt final decisions presented in documents
prepared by other agencies. RPMs must prepare a new FONSI if it adopts
an EA, or a new ROD if it adopts an EIS.
g. Third Party Documents. Environmental review documents prepared
by an outside contractor must meet all the criteria of one prepared internally
by another Federal agency.
.10 Comments on Non-NOAA NEPA Documents.
a. Requirements and Policy. CEQ regulations (40 CFR 1503) require
that a DEIS be submitted for review to any Federal agency that has jurisdiction
by law or special expertise over the resources potentially affected. It
is NOAA’s policy to provide considered, timely and factual comments on
other agency DEISs. This essential NEPA activity provides the means to
exert a significant positive influence on other Federal agency plans and projects
and to ensure consideration, protection and mitigation of impacts to NOAA’s
trust resources.
b. Coordination. The NEPA Coordinator coordinates DOC review and
comments on other agency DEISs and forwards all comments to the originating
agencies. When comments are requested, copies of the incoming DEIS and
a letter noting the deadline for receipt of comments will be sent by the NEPA
Coordinator to appropriate DOC elements. Guidance in the preparation
of these comments is available in 40 CFR 1503.3 and from the NEPA Coordinator. In
particular, the following considerations should be observed when preparing
comments.
1. Comments should be restricted to areas within the reviewer’s
competence, and conclusions must be supportable by facts. Each comment
should be treated as a specialized piece of scientific writing that must stand
up under scrutiny by the reviewer’s peers.
2. Comments of an editorial nature, opinions on the merit of the project,
or phrasing that reveals the personal bias of the reviewer must be scrupulously
avoided.
3. The reviewer should:
(a) call attention to inadequate or missing data that makes it difficult
or impossible to evaluate the conclusions reached in the DEIS;
(b) specify studies or types of information which will supply answers
to the technical questions that the reviewer has raised;
(c) recommend modifications to the proposed action and/or new alternatives
that will enhance environmental quality and avoid or minimize adverse environmental
impacts;
(d) discuss environmental interrelationships between the proposed action
and NOAA’s trust resources that should be included in the EIS;
(e) outline the nature of any particularly appropriate monitoring of
the environmental effects during any phase of the proposed project; and
(f) suggest ways of assisting the sponsoring agency to establish and
operate monitoring systems.
.11 Referrals to CEQ of Environmentally Unsatisfactory Actions. A
CEQ referral is a formal, third party arbitration process initiated when two
or more agencies come to a complete impasse regarding a major environmental
issue. It is CEQ’s policy that referrals reflect an agency’s
careful determination that a proposed action raises significant environmental
issues of national importance. CEQ referrals are made only after
all other concerted efforts at resolution have failed.
a. RPMs will notify the NEPA Coordinator of actions by other Federal
agencies believed to be environmentally unsatisfactory (i.e., those that are
appropriate for "referral," under 40 CFR 1504.3). The NEPA Coordinator
will recommend referrals to the Under Secretary for Oceans and Atmosphere and
Administrator, NOAA. The NEPA Coordinator will work closely with
the RPMs to prepare the letters and support materials required in the referral
process.
b. Determinations of the kinds of proposals that are appropriate for
referral are based on whether:
1. the action is environmentally unacceptable;
2. the action raises significant and major environmental issues of importance;
and
3. reasonable alternatives (including no action) to the proposed action
exist.
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SECTION 6. INTEGRATING NEPA INTO NOAA LINE OFFICE PROGRAMS.
.01 Determining the Significance of NOAA’s Actions. As required
by NEPA Section 102(2)(C) and by 40 CFR 1502.3, EISs must be prepared for every
recommendation or report on proposals for legislation and other "major Federal
actions" significantly affecting the quality of the human environment. A
significant effect includes both beneficial and adverse effects. Federal
actions, including management plans, management plan amendments, regulatory actions,
or projects which will or may cause a significant impact on the quality of the
human environment, require preparation of an EIS. Following is additional
explanation per the definitions used in determining
significance.
a. "Major Federal action" includes actions with effects that may be
major and which are potentially subject to NOAA’s control and responsibility. "Actions" include:
new and continuing activities, including projects and programs entirely or
partly financed, assisted, conducted, regulated, or approved by NOAA; new or
revised agency rules, regulations, plans, policies, or procedures; and legislative
proposals. Refer to 40 CFR 1508.18 for additional guidance.
b. "Significant" requires consideration of both context and intensity. Context
means that significance of an action must be analyzed with respect to society
as a whole, the affected region and interests, and the locality. Both
short- and long-term effects are relevant. Intensity refers to the severity
of the impact. The following factors should be considered in evaluating
intensity (40 CFR 1508.27):
1. impacts may be both beneficial and adverse -- a significant effect
may exist even if the Federal agency believes that on balance the effect
will be beneficial;
2. degree to which public health or safety is affected;
3. unique characteristics of the geographic area;
4. degree to which effects on the human environment are likely to be
highly controversial;
5. degree to which effects are highly uncertain or involve unique or
unknown risks;
6. degree to which the action establishes a precedent for future actions
with significant effects or represents a decision in principle about a
future consideration;
7. individually insignificant but cumulatively significant impacts;
8. degree to which the action adversely affects entities listed in or
eligible for listing in the National Register of Historic Places, or may
cause loss or destruction of significant scientific, cultural, or historic
resources;
9. degree to which endangered or threatened species, or their critical
habitat as defined under the Endangered Species Act of 1973, are adversely
affected; and
10. whether a violation of Federal, state, or local law for environmental
protection is threatened.
11. whether a Federal action may result in the introduction or spread
of a nonindigenous species.
c. "Affecting" means will or may have an effect (40 CFR 1508.3). "Effects" include
direct, indirect, or cumulative effects of an ecological, aesthetic, historic,
cultural, economic, social, or health nature (40 CFR 1508.8).
d. "Legislation" refers to a bill or legislative proposal to Congress
developed by or with the significant cooperation and support of NOAA, but does
not include requests for appropriations (40 CFR 1508.17). The NEPA
process for proposals for legislation significantly affecting the quality
of the human
environment shall be integrated with the legislative process of the Congress
(40 CFR 1506.8).
e. "Human environment" includes the relationship of people with the
natural and physical environment. Each EA, EIS, or SEIS must discuss
interrelated economic, social, and natural or physical environmental effects
(40 CFR 1508.14).
.02 Specific Guidance on Significance of Fishery Management Actions. The
following specific guidance expands, but does not replace, the general language
in Section 6.01 of this Order. When adverse impacts are possible, the
following guidelines should aid the RPM in determining the appropriate course
of action. If none of these situations may be reasonably expected to
occur, the RPM should prepare an EA or determine, in accordance with Section
5.05 of this Order, the applicability of a CE. NEPA document preparers
should also consult 50 CFR 600, Subpart D, for guidance on the national standards
that serve as principles for approval of all FMPs and amendments. The
guidelines follow.
a. The proposed action may be reasonably expected to jeopardize the
sustainability of any target species that may be affected by the action.
b. The proposed action may be reasonably expected to jeopardize the
sustainability of any non-target species.
c. The proposed action may be reasonably expected to cause substantial
damage to the ocean and coastal habitats and/or essential fish habitat
as defined under the Magnuson-Stevens Act and identified in FMPs.
d. The proposed action may be reasonably expected to have a substantial
adverse impact on public health or safety.
e. The proposed action may be reasonably expected to adversely affect
endangered or threatened species, marine mammals, or critical habitat
of these species.
f. The proposed action may be reasonably expected to result in cumulative
adverse effects that could have a substantial effect on the target species
or non-target species.
g. The proposed action may be expected to have a substantial impact
on biodiversity and ecosystem function within the affected area (e.g.,
benthic productivity, predator-prey relationships, etc).
h. If significant social or economic impacts are interrelated with significant
natural or physical environmental effects, then an EIS should discuss all
of the effects on the human environment.
i. A final factor to be considered in any determination of significance
is the degree to which the effects on the quality of the human environment
are likely to be highly controversial. Although no action should be deemed
to be significant based solely on its controversial nature, this aspect should
be used in weighing the decision on the proper type of environmental review
needed to ensure full compliance with NEPA. Socio-economic factors
related to users of the resource should also be considered in determining
controversy
and significance.
.03 Integrating NEPA Into NOAA’s Decisionmaking Process. NEPA
documents prepared in accordance with this Order must accompany the decision
documents in the NOAA decisionmaking process for any major Federal action. The
alternatives and proposed action identified in all such documents must correspond. Any
NEPA document prepared for a proposal will be part of the administrative
record of any decision, rulemaking, or adjudicatory proceedings held on
that proposal.
a. NEPA Documents for Management Plans and Management Plan Amendments. NEPA
documents for management plans and management plan amendments require an EA
or the RPM may decide to proceed directly with an SEIS/EIS. If the RPM
has doubt concerning significance, an EA will be used to determine whether
a FONSI, SEIS, or an EIS is appropriate. A management plan amendment
may also come under a CE (Section 6.03a.3. of this Order). Generally, where
an EIS has been completed on a previous management plan or plan amendment and
that EIS or SEIS is more than five (5) years old, the RPM should review the
EIS to determine if a new EIS or SEIS should be prepared. RPMs may also
consider the use of tiering (40 CFR 1502.20) to reduce paperwork in subsequent
environmental analyses. The NEPA Coordinator is available for consultation
on these determinations. As a general rule, the NEPA documents should
be prepared at the earliest practicable time in conjunction with plan documents
so that the environmental review process will run concurrently, and will
be integrated into the plan development process.
1. Separate NEPA Documents from Management Plans and Plan Amendments. With
this approach, the NEPA document (EA or EIS) is prepared as a separate document
and is not incorporated into the related management plan/amendment. Cross
references between the NEPA document and the management plan/amendment are
encouraged to minimize redundancies between texts. However, under this
option the NEPA document must be a stand-alone document. The NEPA document
must comply fully with the CEQ regulations, including requirements for contents
and administrative procedures and provisions of this Order. The plan
and the NEPA document may be printed under the same cover.
2. Consolidated NEPA Documents, Management Plans and Plan Amendments. NEPA
documents may be combined with the contents of related management plans or
amendments to yield a single "consolidated" document. These documents
must still satisfy the CEQ regulations, but need not be prepared according
to the CEQ recommended outline for NEPA documents. The consolidated document
must contain a detailed table of contents identifying required sections of
the NEPA document. The NEPA Coordinator must clear the NEPA aspects of
each consolidated document since the document serves as a NEPA document as
well as a management plan or amendment. Similarly, all consolidated documents
which include an EIS must be filed at EPA and follow the normal administrative
procedures for any EIS, including public review. Comments on a part
of a consolidated document that also serves as part of the EIS must be
responded to in the FEIS.
3. Categorical Exclusions for Management Plans and Plan Amendments.
(a) No management plan may receive a categorical exclusion, i.e., all
plans must be accompanied by an EA or EIS. Management plan amendments
not requiring an EIS must be accompanied by an EA unless they meet the criteria
of a CE (Section 5.05b. of this Order). A CE determination must be made
by the RPM on a case-by-case basis on whether the effects of an action that
normally falls under one of these categories may have a significant effect
on the human environment. In determining whether the effects are significant,
certain factors relevant to the proposed activity should be considered. These
factors include the degree to which the effects on the quality of the human
environment are: controversial; unique or involve unknown risks;
precedential or represent a decision in principle about future consideration;
individually
insignificant but cumulatively significant; and/or likely to adversely
impact species listed under the ESA or their habitats.
(b) Management plan amendments may receive a CE. Examples of CEs
for management plan amendments include, but are not limited to, the following:
(1) a management plan amendment may be categorically excluded from further
NEPA analysis if the action is an amendment or change to a previously analyzed
and approved action and the proposed change has no effect individually
or cumulatively on the human environment (these determinations must be accompanied
by an individual
memo to the record with a copy submitted to the NEPA Coordinator, and a
brief
statement within a decision memorandum); and
(2) minor technical additions, corrections, or changes to a management
plan.
4. Special Circumstances. Management plan amendments may address
an action that has been fully analyzed by a previous EIS or EA. These
actions cannot expand the original action and the alternatives and their impacts
must not differ from the previously reviewed action. Under these circumstances,
the action does not qualify for a categorical exclusion because the action
may have an adverse effect, however duplication of the previous environmental
review is not necessary. These actions require only a new FONSI statement
based on the existing NEPA document(s).
b. NEPA Documents for Trustee Restoration Actions under CERCLA, OPA,
and NMSA. NOAA has the responsibility for planning and implementing restoration
under the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), the Oil Pollution Act of 1990 (OPA), and the National
Marine Sanctuary Act (NMSA). NOAA should integrate restoration planning with
the NEPA planning process.
1. EAs and EISs for Restoration Actions. Restoration plans require
an EA, to determine the significance of the effect on the human environment,
unless the RPM decides to proceed directly with an EIS. Restoration
Plans that are significant based upon general and specific criteria in
Section 6.01
of this Order require an EIS.
2. Categorical Exclusions for Restoration Actions. The Damage
Assessment and Restoration Program policy states that restoration actions pursuant
to CERCLA, OPA, and NMSA constitute major Federal actions that may pose significant
impacts on the quality of the human environment, and are not per se entitled
to a CE. Restoration actions that do not individually or cumulatively
have significant impacts on the human environment (e.g., actions with limited
degree, geographic extent, and duration) may be eligible for categorical
exclusion (40 CFR 1508.4), provided such actions meet all of the following
criteria:
(a) are intended to restore an ecosystem, habitat, biotic community,
or population of living resources to a determinable pre-impact condition;
(b) use for transplant only organisms currently or formerly present
at the site or in its immediate vicinity;
(c) do not require substantial dredging, excavation, or placement of
fill; and
(d) do not involve a significant added risk of human or environmental
exposure to toxic or hazardous substances.
3. Examples of Restoration Actions Eligible for a CE. Restoration
actions likely to meet all of the above criteria and therefore be eligible
for CE include the following.
(a) On-site, in-kind restoration actions (actions in response to a specific
injury) such as:
(1) revegetation of habitats or topographical features, e.g., planting
or restoration of seagrass meadows, mangrove swamps, salt marshes, coastal
dunes, streambanks, or other wetland, coastal, or riparian areas;
(2) restoration of submerged, riparian, intertidal, or wetland substrates;
(3) replacement or restoration of shellfish beds through transplant
or restocking;
(4) structural or biological repair or restoration of coral reefs; and
(b) Actions to restore historic habitat hydrology, where increased risk
of flood or adverse fishery impacts are not significant. Examples
of such actions include:
(1) restoration, rehabilitation, or repair of fish passageways or spawning
areas; and
(2) restoration of tidal or non-tidal wetland inundation e.g., through
enlargement, replacement or repair of existing culverts, or through modification
of existing tide gates).
(c) Actions to enhance the natural recovery processes of living resources
or systems affected by anthropogenic impacts. Such actions include:
(1) use of exclusion methods (e.g., fencing) to protect stream corridors,
riparian areas or other sensitive habitats; and
(2) actions to stabilize dunes, marsh-edges, or other mobile shoreline
features (e.g., fencing dunes, use of oyster reefs or geotextiles to stabilize
marsh-edges).
4. Consolidated Restoration Plans and Environmental Documents. EA
or EIS contents may be combined with the contents of related Restoration Plans
to yield a single consolidated document. These documents must still satisfy
the CEQ regulations and all requirements for contents and administrative procedures,
but need not be prepared according to the CEQ recommended outline for EAs and
EISs. The consolidated document must contain a detailed table of contents
identifying required sections of the EA or EIS. The NEPA Coordinator
must clear the NEPA aspects of each consolidated document since the document
serves as an EA or EIS as well as a Restoration Plan. Similarly,
all consolidated documents must follow the normal administrative procedures
for
any EA or EIS, including public review.
5. Tiering Regional Restoration Plans. NOAA may identify existing
NEPA documents for regional restoration plans or other existing restoration
projects that may be applicable in the event of an incident. Regional
restoration planning may consist of compiling databases that identify existing,
planned, or proposed restoration projects that may provide a range of appropriate
restoration alternatives for consideration in the context of specific incidents. If
a regional restoration plan, existing restoration project, or some
component of the plan or project is proposed for use, NOAA may be able
to link or tier
the necessary NEPA analysis to an existing analysis.
c. NEPA Documents for Projects and Other NOAA Actions. NOAA is
involved in certain actions generally categorized as projects, including: funding
and budget decisions; grants; loan guarantee programs; vessel capacity reduction
programs; research programs; land acquisition; construction activities; real
estate actions; and permits and licenses. The actual type of document
to be prepared is based on the significance of the action, as described at
Section 6.01 of this Order. Requirements for environmental analysis
for these and similar activities are described below.
1. Projects and Other Actions That Require an EA but Not Necessarily
an EIS.
(a) Projects that may have significant impacts are required to have
an EA unless they meet the criteria of a CE or the RPM determines that an EIS
will be prepared. Where an EA reveals that significant impacts will
or may occur, the RPM must prepare an EIS.
(b) The RPM may prepare either an EA or EIS for the following types
of actions, based on the scope and significance of the specific proposed
action:
(1) financial assistance awards for land acquisition, construction,
or vessel capacity reduction such as those administered under the Magnuson-Stevens
Act, where such actions may result in significant impacts;
(2) new financial support services at the time of conception that have
not already been analyzed;
(3) acquisition, sale, transfer, construction, or modification of major
new facilities budgeted by NOAA, including lease-to-buy projects containing
at least 20,000 square feet of occupiable space;
(4) major re-locations of NOAA personnel undertaken for programmatic
reasons; and
(5) other actions, including research, that may as individual actions
or cumulative actions have significant environmental impacts.
2. Projects and Other Actions That Require an EIS. An EIS is required
for major Federal projects or actions determined by the RPM to be significant. The
RPM may proceed directly to an EIS without preparing an EA. These
projects or actions include the following:
(a) major new projects or programmatic actions that may significantly
affect the quality of the human environment;
(b) actions required by law to be subject to an EIS, such as an application
for any license for ownership, construction, and operation of an Ocean
Thermal Energy Conversion facility or for a Deep Seabed Mining license or permit;
(c) research projects, activities, and programs when any of the following
may result:
(1) research is to be conducted in the natural environment on a scale
at which substantial air masses are manipulated (e.g., extensive cloud-seeding
experiments), substantial amounts of mineral resources are disturbed (e.g.,
experiments to improve ocean sand mining technology), substantial volumes
of water are moved (e.g., artificial upwelling studies), or substantial amounts
of wildlife habitats are disturbed (e.g., habitat restoration techniques);
(2) either the conduct or the reasonably foreseeable consequences of
a research activity would have a significant impact on the quality of the
human environment;
(3) research that is intended to form a major basis for development
of future projects (e.g., acoustic thermometry experiments) which would
be considered major actions significantly affecting the environment under this
Order; and/or
(4) research that involves the use of highly toxic agents, pathogens,
or non-native species in open systems; and
(d) Federal plans, studies, or reports prepared by NOAA that could determine
the nature of future major actions to be undertaken by NOAA or other Federal
agencies that would significantly affect the quality of the human environment.
3. Categorical Exclusions. The following categories of projects
or other actions do not normally have the potential for a significant impact
on the quality of the human environment and therefore usually are excluded
from the preparation of either an EA or an EIS. In all cases, a determination
must be made by the RPM on a case-by-case basis whether the effects of an action
that normally falls under one of these categories may have a significant impact
on the human environment. In determining whether the impacts are
significant, certain factors relevant to the proposed activity should be
considered as
described in Section 5.05b. of this Order.
(a) Research Programs. Programs or projects of limited size and
magnitude or with only short-term effects on the environment and for which
any cumulative effects are negligible. Examples include natural resource
inventories and environmental monitoring programs conducted with a variety
of gear (satellite and ground-based sensors, fish nets, etc.) in water, air,
or land environs. Such projects may be conducted in a wide geographic
area without need for an environmental document provided related environmental
consequences are limited or short-term.
(b) Financial and Planning Grants. Financial support services,
such as a Saltonstall-Kennedy grant, a fishery loan or grant disbursement under
the Fishermen's Contingency Fund or Fisheries Obligation Guarantee Program,
or a grant under the CZMA where the environmental effects are minor or negligible. New
financial support services and programs should undergo an EA or EIS at
the time of conception to determine if a CE could apply to subsequent actions.
(c) Minor Project Activities. Projects where the proposal is for
a minor amelioration action such as planting dune grass or for minor project
changes or minor improvements to an existing site (e.g., fences, roads,
picnic facilities, etc.), unless such projects in conjunction with other related
actions may result in a cumulative impact (40 CFR 1508.7).
(d) Administrative or Routine Program Functions. The following
NOAA programmatic functions that hold no potential for significant environmental
impacts qualify for a categorical exclusion: program planning and
budgeting including strategic planning and operational planning; mapping,
charting,
and surveying services; ship support; ship and aircraft operations; fishery
financial
support services; grants for fishery data collection activities; basic
and applied research and research grants, except as provided in Section
6.03b.
of this Order; enforcement operations; basic environmental services and
monitoring, such as weather observations, communications, analyses, and
predictions;
environmental satellite services; environmental data and information services;
air quality
observations and analysis; support of national and international atmospheric
and Great Lakes research programs; executive direction; administrative
services; and administrative support advisory bodies.
(e) Real Estate Actions. The following NOAA real estate actions
with no potential for significant environmental impacts are categorically excluded
from preparation of an EA or EIS: repair, or replacement in kind,
of equipment and components of NOAA owned facilities; weatherization of
NOAA
facilities; environmental monitoring; procurement contracts for NEPA documents;
architectural
and engineering studies and supplies; routine facility maintenance and
repair and grounds-keeping activities; acquisitions of space within an
existing
previously occupied structure, either by purchase or lease, where no change
in the general
type of use and minimal change from previous occupancy level is proposed;
acquisition of less than 5,000 square feet of occupiable space by means
of Federal construction,
lease construction, or a new lease for a structure substantially completed
prior to solicitation for offers and not previously occupied; lease extensions,
renewals, or succeeding leases; relocation of employees into existing Federally-owned
or commercially leased office space within the same metropolitan area not
involving a substantial number of employees or a substantial increase in
the number of
motor vehicles at a facility; out-lease or license of government-controlled
space, or sublease of government-leased space to a non-Federal tenant when
the use will remain substantially the same; various easement acquisitions;
acquisition of land which is not in a floodplain or other environmentally
sensitive area and does not result in condemnation; and installment of
antennas as part
of site plan of the property.
(f) Construction Activities. Minor construction conducted in accordance
with approved facility master plans and construction projects on the interiors
of non-historic NOAA-owned and leased buildings, including safety and fire
deficiencies, air quality, interior renovation, expansion or improvement
of an existing facility where the gross square footage is not increased by
more
than 10 percent, and the site size is not increased substantially, and
minor repair/replacement of existing piers or floats not exceeding 80 feet
in length.
(g) Facility Improvement or Addition. Minor facility improvement
or addition where ground disturbance is limited to previously disturbed
areas (i.e., previously paved or cleared areas).
(h) NEXRAD Radar Coverage. Change in NEXRAD radar coverage patterns
which do not lower the lowest scan elevation and do not result in direct
scanning of previously non-scanned terrain by the NEXRAD main beam.
(i) Other Categories of Actions Not Having Significant Environmental
Impacts. These actions include: routine operations and routine maintenance,
preparation of regulations, Orders, manuals, or other guidance that implement,
but do not substantially change these documents, or other guidance; policy
directives, regulations and guidelines of an administrative, financial,
legal, technical or procedural nature, or the environmental effects of
which are
too broad, speculative or conjectural to lend themselves to meaningful
analysis and will be subject later to the NEPA process, either collectively
or case-by-case;
activities which are educational, informational, advisory or consultative
to
other agencies, public and private entities, visitors, individuals or the
general public; actions with short term effects, or actions of limited
size or magnitude.
d. NEPA Documents for Actions taken under the Magnuson-Stevens Act. To
the extent possible documents developed to support FMPs, FMP amendments, regulatory
amendments, letters of acknowledgment of scientific research, authorization
of educational activities, exempted fishing permits, and other fishery regulatory
actions developed under the Magnuson-Stevens Act should be integrated with
the required NEPA document to produce one combined document. The provisions
of Section 6.02a. are applicable to FMPs and FMP amendments. The National
Marine Fisheries Service (NMFS) and the RFMCs should attempt to develop and
integrate the NEPA document with FMP public hearing documents at the earliest
possible stage to provide the public and decision makers with an assessment
of environmental impacts of the proposed actions prior to RFMC decisions. The
NEPA analysis and the analysis required under the Magnuson-Stevens Act may
be similar, but the scope of the NEPA analysis must include a discussion of
the broader impacts of the fishery as a whole on the human environment. Specific
guidance on determining significance for fisheries actions and the scope
of environmental analyses required under NEPA is provided under Section
6.02 of
this Order, and in the 1991 memorandum to the Regional Directors from the
NMFS Assistant Administrator (Fox, 1991).
1. Fisheries Actions that Require an EA. EAs are the most
common NEPA documents prepared for FMP amendments and regulatory actions. If
NMFS or the RFMCs cannot make an initial determination that significant impacts
are likely to occur from the proposed action or that the action is eligible
for a CE, an EA should be prepared which includes sufficient information to
determine whether the action is significant under NEPA and an EIS need be prepared,
or a FONSI can be concluded. Examples of EAs on past FMP amendments
may be obtained from the NEPA Coordinator.
2. Fisheries Actions that Require an EIS. When developing a new
FMP for a previously unregulated species, the RFMC or NMFS should conduct an
EIS on the proposed plan. An EIS must also be prepared for all FMP amendments
and regulatory actions when the RFMC or NMFS determines that significant beneficial
or adverse impacts are reasonably expected to occur. Consideration of cumulative
impacts must also be taken into account when considering whether to prepare
an EIS. In particular, the RPM must consider the cumulative impacts
of connected management measures implemented under other FMPs, MMPA actions,
or
ESA management actions.
3. Framework Actions for Fisheries Management Plans. Framework
actions must be given the same consideration under NEPA as are FMP amendments. The
essence of the framework concept is the adjustment of management measures within
the scope and criteria established by the FMP and implementing regulations
to provide real time management of fisheries. Framework measures may
be “open” measures that provide managers a given set or limit of
options to apply to a fishery through a regulatory amendment process, or more
traditional “closed” measures such as closures, seasons, or gear
restrictions. Closed measures are implemented through in season rulerelated
notices. Analysis for FMP amendments and regulatory amendments that establish
or implement frameworks should, to the extent possible, assess the full range
of impacts resulting from the options allowed under the framework. This
will reduce the scope of analysis required for subsequent actions established
under the framework. Closed management measures fully analyzed by
a framework analysis require no further action.
4. Categorical Exclusions for Fisheries Management Actions. Fisheries
management actions may qualify for a CE pursuant to Section 9.03a.3. of this
Order if the actions individually and cumulatively does not have the potential
to pose significant effects to the quality of the human environment. These
determinations must be documented by a memorandum to the record which states
the specific rationale behind why the action qualified for a categorical exclusion. In
determining whether the effects of the fisheries management action are significant,
the factors identified in Section 5.05b. of this Order for the appropriateness
of a CE relevant to the activity should be considered along with the specific
guidance on significance provided in Section 6.02 of this Order. If an
action is determined to be CE under Section 5.05b. of this Order, a brief statement
so indicating shall be included within an appropriate decision memorandum and
submitted to the NEPA Coordinator. Actions that may receive a categorical
exclusion may include:
(a) ongoing or recurring fisheries actions of a routine administrative
nature when the action will not have any impacts not already assessed or
the RPM finds they do not have the potential to pose significant effects
to the
quality of the human environment such as: reallocations of yield within
the scope of a previously published FMP or fishery regulation, combining management
units in related FMP, and extension or change of the period of effectiveness
of an FMP or regulation; and
(b) minor technical additions, corrections, or changes to an FMP.
e. NEPA Documents For Actions taken under the Endangered Species Act. NOAA
has numerous responsibilities under the ESA that include listing species
as threatened or endangered, designating critical habitat, preparing recovery
plans, monitoring species that have been removed from the endangered species
list, issuing scientific and enhancement permits, and issuing incidental
take
permits.
1. Special Circumstances For ESA Listing Determinations. Determinations
that a species is threatened or endangered, determinations that a species should
be delisted, and determinations that a species should be reclassified as threatened
or endangered, are exempt from NEPA compliance. Pursuant to legislative
history accompanying the 1982 amendments to the ESA, and Pacific Legal Foundation
v. Andrus, these actions are exempt from NEPA and are not categorically excluded,
which implies that NEPA is still applicable to these actions. Actions
found to be exempt from NEPA are not the same as actions found to qualify
as categorical exclusions, as those actions are subject to environmental
impact
considerations under NEPA.
2. ESA Actions That Require an EA but Not Necessarily an EIS.
(a) Promulgation of special management rules pursuant to Section 4(d)
of the ESA requires an EA (see Section 6.03e.3.(a) for guidance on NEPA compliance
for preparation of recovery plans). Section 4(d) rules may require
an EIS, but that finding will be determined on a case-by-case basis or
after an
EA is completed on the action.
(b) Implementation of recovery actions, including actions identified
in recovery plans require an EA unless covered by Section 6.03e.3.(a) of this
Order. Some recovery actions, such as reintroductions or establishment
of experimental populations, may require an EIS, but that finding will
be determined on a case-by-case basis or after an EA is completed on the
action.
(c) Issuance of permits for scientific purposes or to enhance the propagation
or survival pursuant to Section 10(a)(1)(A) of the ESA for hatchery activities
requires an EA (see Section 6.03e.3.(b) for guidance on NEPA compliance for
other permits issued pursuant to this section of the ESA). Modifications
to these permits may qualify for a CE, but that finding will be determined
on a case-by-case basis or after an EA is completed on the action.
(d) Issuance of incidental take permits pursuant to Section 10(a)(1)(B)
of the ESA must be accompanied by an EA unless covered by Section 6.03e.3(d)
of this Order and may require an EIS. The cumulative impacts of the total
number of permit actions must be considered in determining whether a FONSI
is appropriate. NEPA documents prepared for these permits must pay
particular attention to the direct, indirect and cumulatively beneficial
and adverse impacts
to the environment (which includes listed species) from these permits.
(e) Establishment of experimental populations pursuant to Section 10(j)
of the ESA requires an EA (see Section 6.03e.3.(a) of this Order for guidance
on NEPA compliance for preparation of recovery plans). Establishment
of some experimental populations may require an EIS, but that finding will
be determined on a case-by-case basis or after an EA is completed on the
action.
(f) Promulgation of enforcement and protective regulations pursuant
to Section 11(f) of the ESA requires an EA (see Section 6.03e.3.(a) of
this Order for guidance on NEPA compliance for preparation of recovery
plans).
3. Categorical Exclusions for ESA Actions. The following actions
may be appropriate for categorical exclusion:
(a) Preparation of Recovery Plans. Preparation of recovery plan
pursuant to Section 4(f)(1) of the ESA is categorically excluded because such
plans are only advisory documents that provide consultative and technical assistance
in recovery planning. However, implementation of specific tasks themselves
identified in recovery plans may require an EA or EIS depending on the
significance of the action (see Section 6.03e.2.(b) for guidance on NEPA
compliance for
implementation of recovery actions).
(b) Scientific Research and Enhancement Permits. In general, permits
for scientific purposes or to enhance the propagation or survival of listed
species issued pursuant to sec. 10(a)(1)(a) of the ESA qualify for a CE (except
for permits covered in Section 6.03e.2.(c)). The factors listed in Section
5.05b. of this Order must be considered in all CE determinations on permits. The
RPM must also consider the cumulative impact on the listed species from
the total amount of permits issued with CEs, and take into account any
population
shifts with the subject species.
(c) Critical Habitat Designations. The RPM will determine on a
case-by-case basis whether NEPA analysis is required for the designation of
critical habitat under Section 4(a)(3) of ESA. In general, the designation
of critical habitat reinforces the substantive protections resulting from listing. To
the extent that a designation overlaps with listing protections, it is unlikely
to have a significant affect on the human environment and may qualify as a
categorical exclusion under Section 8.05 of this Order. NMFS may decide
as a matter of policy or otherwise to prepare an EA for certain critical habitat
designations, such as those determined to be highly controversial, even when
it is determined that the designation meets the requirements of a categorical
exclusion. In the case of critical habitat designations that include
habitat outside the current occupied range of a listed species, the potential
for economic and/or other impacts over and above those resulting from the
listing exists; therefore, in general, a categorical exclusion will not
apply.
(d) “Low Effect” Incidental Take Permits. The issuance
of “low effect” incidental take permits under Section 10(a)(1)(B)
of ESA permits actions that individually or cumulatively, have a minor or negligible
effect on the species covered in the habitat conservation plan. A
CE is generally appropriate for this type of action.
f. NEPA Documents for Actions Taken under the MMPA. NOAA is involved
in a number of actions within their responsibility under the MMPA. These
include permits for the taking of marine mammals under sec. 104 of MMPA
for purposes of public display, scientific research, survival and recovery,
and
photography for educational or commercial purposes; permits or authorizations
under sec. 101(a)(5)(E) and Section 118 for takings incidental to the course
of commercial fishing operations; incidental harassment authorizations
for small takes under MMPA sec. 101(a)(5)(A); grants for research; activities
conducted under the General Authorization for Scientific Research; and
take
reduction
plans.
1. MMPA Actions That Require an EA but Not Necessarily an EIS. Authorization
for the intentional lethal take of individually identified pinnipeds under
sec. 120 of the MMPA requires an EA. Take reduction plans and other activities
to govern the interactions between marine mammals and commercial fishing operations
generally require an EA. Permits and authorizations for incidental,
but not intentional taking of ESA-listed marine mammals under Section 101(a)(5)(E)
or sec. 118 of the MMPA require an EA.
2. Categorical Exclusions.
(a) In general, scientific research, enhancement, photography, and public
display permits issued under section101(a)(1) and 104 of the MMPA, and letters
of confirmation for activities conducted under the General Authorization for
Scientific Research established under Section 104 of the MMPA, qualify for
a CE. The factors listed in Section 5.05b. of this Order must be considered
in all CE determinations on permits. The RPM must also consider the cumulative
impact on the protected species from the total amount of permits issued with
CEs, and take into account any population shifts with the subject species. Research
activities conducted under the General Authorization for Scientific Research
will be reviewed periodically for cumulative impact.
(b) Small take incidental harassment authorizations under Section 101(a)(5)(a),
tiered from a programmatic environmental review, are categorically excluded
from further review. The small take incidental harassment authorizations
are part of an expedited process to take small numbers of marine mammals by
harassment without the need to issue specific regulations governing the taking
of marine mammals for each and every activity. If an authorization
under 101(a)(5)(a) does not tier from a programmatic environmental review,
that action
may require an EIS, EA, or CE, based on a case-by-case review.
(c) In cases such as those authorized by Section 109(h) of the MMPA
(i.e., taking of marine mammals as part of official duties), such actions are
not exempt from NEPA, nor are they categorically excluded from environmental
review, and alternative measures are necessary. Under these conditions,
a programmatic review may be the appropriate means for meeting NEPA requirements.
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SECTION 7. INTEGRATING NEPA WITH OTHER ORDERS.
.01 Integration of E.O. 12114, Environmental Effects Abroad of Major Federal
Actions, in the NOAA Decisionmaking Process.
a. Scope. This section applies to NOAA activities, or impacts
thereof, which occur outside the United States, or which may affect resources
not subject to the management authority of the United States, that are subject
to E.O. 12114 and DAO 216-12 other than those activities addressed pursuant
to NEPA. Specifically, E.O. 12114 directs agencies to establish environmental
impact review procedures in the following categories of actions.
1. Major Federal actions significantly affecting the environment of
the global commons outside the exclusive jurisdiction of any nation (e.g.,
the oceans, the atmosphere, the deep seabed, or Antarctica).
2. Major Federal actions significantly affecting the environment of
a foreign nation not participating with the United States and not otherwise
involved in the action.
3. All other major Federal actions significantly affecting the environment
of a foreign nation, including, but not limited to, those that provide
to that nation:
(a) a product and/or a principal product, emission, or effluent which
is prohibited or strictly regulated by Federal law in the United States
because its toxic effects on the environment create a serious public health
risk;
(b) a physical project which is prohibited or strictly regulated by
Federal law in the United States to protect the environment against radioactive
substances.
4. Major Federal actions outside the United States, its territories
and possessions which significantly affect natural or ecological resources
of global importance designated for protection by the President under the provisions
of E.O. 12114, or, in the case of resources protected by international agreement
binding on the United States, by the Secretary of State. In this context,
the phrase "outside the United States" refers to the area beyond the 200-mile
exclusive economic zone and continental shelf of the United States.
b. Special Efforts. Certain activities having environmental impacts
outside the United States require special efforts because of their international
environmental significance. These include activities which:
1. threaten natural or ecological resources of global importance or
which threaten the survival of any species;
2. may have a significant impact on any historic, cultural, or national
heritage or resource of global importance; or
3. involve environmental obligations set forth in an international treaty,
convention, or agreement to which the United States is a party.
c. Constraints.
1. Environmental documents on actions subject to this section should
be as complete and detailed as possible under the circumstances. However,
in analyzing activities or impacts which occur outside the United States,
it may on occasion be necessary to limit the circulation, timing, review
period,
or detail of an EA or EIS for one or more of the following reasons:
(a) diplomatic considerations;
(b) National security considerations;
(c) relative unavailability of information;
(d) commercial confidentiality; and
(e) the extent of NOAA's role in the proposed activity.
2. When full compliance with this Order is not possible, consideration
may be given to the preparation of:
(a) bilateral or multilateral environmental studies, relevant or related
to the proposed actions, by the United States and one or more foreign nations,
or by an international body or organization in which the United States
is a member or participant; and
(b) concise reviews of the environmental issues involved, including
EAs, summary environmental analyses, or other appropriate documents.
3. RPMs, in consultation with the NEPA Coordinator and the NOAA Office
of General Counsel, will decide whether an EA or EIS should be prepared
on an action under this section.
d. Consultation. In preparing an environmental document for an
activity which may affect another country or which is undertaken in cooperation
with another country and will have environmental effects abroad, the RPM should
consult with the NEPA Coordinator both in the early stages of document preparation
(in order to determine the scope and nature of the environmental issues involved)
and in connection with the results and significance of such documents. The
NEPA Coordinator and the NOAA Office of General Counsel will consult, as appropriate,
with other offices in the DOC, CEQ, and Department of State when the proposed
action or its environmental consequences are likely to involve substantial
policy considerations. When consulting with foreign officials, every
effort must be made to take into account foreign sensitivities and to understand
that one of NOAA's objectives in preparing environmental documents in cases
involving effects abroad is to provide environmental information to foreign
decisionmakers, as well as to responsible NOAA officials. Finally,
NOAA's efforts in preparing these environmental documents will be directed,
in part,
toward strengthening the ability of other countries to carry out their
own analyses of the likely environmental effects of proposed actions.
.02 Integration of E.O. 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, in the NOAA Decisionmaking
Process. E.O. 12898 requires agencies to analyze the effects of their
actions on low-income and minority populations. The consideration of
E.O. 12898 should be specifically included in the NEPA documentation for decisionmaking
purposes. Unlike NEPA, the trigger for analysis under E.O. 12898 is not
limited to actions that are major or significant and Federal agencies are mandated
by E.O. 12898 to identify and address, as appropriate, disproportionately high
and adverse human health or environmental effects of its programs, policies,
and activities on minority populations and low-income populations. Thus,
when applicable, environmental justice should be addressed in activities
that require NEPA analysis, and also in instances where the activity is
not considered
major or significant, and therefore does not require NEPA analysis beyond
a CE determination.
a. Analyzing E.O. 12898 in EA and EIS Documents. When applicable,
each NOAA EA and EIS shall include a discussion of the environmental effects
of the proposed Federal action including human health, economic and social
effects on minority and low-income communities. The analysis may be integrated
into the environmental consequences and social/economic sections of the documents
or a separate section specifically addressing E.O. 12898 may be included. If
the information is integrated into an EA or EIS, the document should identify
that the analysis meets the goals and intent of E.O. 12898.
b. Mitigation Measures in NEPA Documents for E.O. 12898. Whenever
feasible, mitigation measures outlined or analyzed in an EA, EIS, or record
of decision should address significant and adverse environmental effects on
minority and low income communities. Beneficial impacts of
the project may also be identified.
.03 Integration of E.O. 13112, Invasive Species, in the NOAA Decisionmaking
Process. E.O. 13112 requires agencies to use authorities to prevent introduction
of invasive species, respond to and control invasions in a cost effective and
environmentally sound manner, and to provide for restoration of native species
and habitat conditions in ecosystems that have been invaded. E.O. 13112
also provides that agencies shall not authorize, fund, or carry out actions
that are likely to cause or promote the introduction or spread of invasive
species in the United States or elsewhere unless a determination is made that
the benefits of such actions clearly outweigh the potential harm; and that
all feasible and prudent measures to minimize the risk of harm will be taken
in conjunction with the actions. The consideration of E.O. 13112 should
be included in the NEPA documentation for decisionmaking purposes when appropriate. Actions
subject to such analysis include, but are not limited to, intentional introduction
of organisms into ecosystems outside of their native range, activities
which could result in the unintentional introduction of nonindigenous species,
and activities that could promote the spread of nonindigenous species that
have
already been introduced.
.04 Integration of E.O. 13089, Coral Reef Protection, in NOAA Decisionmaking
Process.
E.O. 13089 requires agencies to (a) identify actions that may affect U.S.
coral reef ecosystems, (b) utilize their programs and authorities to protect
and enhance the conditions of such ecosystems, and (c) ensure that any
actions they authorize, fund or carry out will not degrade the conditions of
coral
reef ecosystems. Agencies whose actions affect U.S. coral reef ecosystems
shall provide for implementation of measures needed to research, monitor,
manage, and restore affected ecosystems, including but not limited to,
measures reducing
impacts from pollution, sedimentation and fishing. To the extent
not inconsistent with statutory responsibilities and procedures, these
measures
shall be developed in cooperation with the U.S. Coral Reef Task Force and
fishery management councils and in consultation with affected States, territorial,
commonwealth, tribal, and local government agencies and non-governmental
stakeholders. The
consideration of E.O. 13089 should be included in the NEPA documentation
for decision making purposes when appropriate. Actions subject to
such analysis include, but are not limited to, fishery management plans
and/or
other actions
impacting fisheries or non-fisheries species of coral reef ecosystems,
inland and/or coastal development, dredging and/or harbor development,
actions impacting
coastal water quality, and other activities which could result in the intentional
or unintentional degradation of U.S. coral reef ecosystems.
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SECTION 8. EFFECT ON OTHER ISSUANCES.
This Order supersedes NAO 216-6, dated August 6, 1991, and NOAA Administrator's
Letter No. 17, dated April 3, 1978.
SIGNED,
Under Secretary for Oceans and Atmosphere Administrator
Attachments: Exhibits
Office of Primary Interest:
Office of Policy and Strategic Planning
v