[Federal Register: March 8, 2004 (Volume 69, Number 45)]
[Notices]
[Page 10865-10887]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr04-153]
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Part III
Department of the Interior
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National Environmental Policy Act Revised Implementing Procedures;
Notice
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DEPARTMENT OF THE INTERIOR
[516 DM 1-15]
National Environmental Policy Act Revised Implementing Procedures
AGENCY: Department of the Interior.
ACTION: Notice of final revised procedures.
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SUMMARY: This notice contains the final revised Departmental policies
and procedures for compliance with the National Environmental Policy
Act (NEPA), as amended, Executive Order 11514, as amended, and the
Council on Environmental Quality's (CEQ) regulations. This action is
necessary to update these procedures and to make them available to the
public on the Department's Internet site. These procedures are final
and will be published in part 516 of the Departmental Manual (DM) and
will be made available to the public on the Electronic Library of
Interior Policies (ELIPS). ELIPS is located at http://elips.doi.gov/.
The bureaus and offices of the Department of the Interior are required
to use these procedures when meeting their responsibilities under the
National Environmental Policy Act.
FOR FURTHER INFORMATION CONTACT: Terence N. Martin, Team Leader,
Natural Resources Management; Office of Environmental Policy and
Compliance; 1849 C Street, NW.; Washington, DC 20240. Telephone: 202-
208-5465. E-mail: terry_martin@ios.doi.gov.
SUPPLEMENTARY INFORMATION: General: These procedures address policy as
well as procedure in order to assure compliance with the spirit and
intent of NEPA. They update Interior's policies and procedures in order
to stay current with changing environmental laws and programs of the
Federal government. It is the intent of these procedures to provide one
set of broad Departmental directives and instructions to all bureaus
and offices of the Department to follow in their NEPA compliance
activities. In previous publications of these chapters the Department's
bureaus published appendices to chapter 6 to further describe each
bureau's compliance program. In order to more efficiently handle these
appendices in the ELIPS system, it has been decided to republish them
as new chapters to this DM part. Therefore, new chapters 8 through 15
which represent the currently existing bureau appendices will be added
to the Departmental Manual. These chapters have already received public
review, are final, and are not being republished here today. In the
near future, each bureau will consider revising its chapter to bring it
into conformance with the Department's procedures. Any revisions to
these chapters will be published in the Federal Register for public
comment. In accordance with 1507.3 of the CEQ Regulations, this
Department submitted these final revisions to CEQ for their review and
approval. In a letter, CEQ approved these procedures for final
publication. The remaining sections of SUPPLEMENTARY INFORMATION will
provide background, a synopsis of comments and responses, and
procedural requirements. Following the SUPPLEMENTARY INFORMATION is the
text of the final procedures.
Background: On September 4, 2003, the Department published these
procedures in draft form and invited the public to make comments. All
comments received to date on this publication have been read, analyzed,
and considered in the revision process. The procedures have also been
circulated in the Department for final clearance by each assistant
secretary. In some cases, responses to public comments or changes made
as a result of public comments have been further revised during the
final, internal review and clearance process.
Comments and Responses: The Department received, reviewed, and
considered seventeen letters of comment on the September 4, 2003,
Federal Register notice. There were some comments which focused on
certain broad issues, and those comments are addressed immediately
below. We have identified these issues with portions of the publication
or with a descriptive title. These titles are in all capital letters
for easy identification. Following these responses, we have
incorporated the outline of each chapter of the final publication for
ease of tracking individual comments on specific sections. To find your
comment, you should proceed to the section of the manual that you
commented on to see the response. For example, if you made a comment in
Chapter 3, subpart 4, proceed to the heading 516 DM 3 and find 3.4. In
each subpart where there are comments, we have paraphrased the comments
in italics followed immediately by our response in regular type. If
several reviewers made comments on the same section and a single answer
is warranted, it is identified as an answer to multiple comments. If a
chapter subpart is not listed, there were no comments received on that
subpart.
Supplementary Information Portion of the September 4, 2003, Publication
In the SUPPLEMENTARY INFORMATION section of the September 4, 2003,
Federal Register notice, we made the statement that:
They update our policies and procedures in order to stay current
with changing environmental laws and programs of the Federal
government.
Several reviewers were concerned that this statement needed more
clarification and seemed to apply a more formal reading of the
statement than did the Department.
We intended the statement in a casual manner since, over the last
twenty three years, there have been a number of new and modified
environmental requirements at all levels of government. We wish to
assure all reviewers that this sentence is only a summary expression
reflecting the intent of the revision to take into account the past
twenty three years of changing environmental requirements. These
Departmental procedures originated in 1980 and have become dated both
in reference to and substantive compliance with newer requirements.
Agencies often revise their procedures for this reason. Also, the CEQ
Regulations require agencies to review their procedures [40 CFR
1507.3(a)]. In addition, the Department has been posting sections of
its operating manual on the Internet for easy public access. Before
these chapters can be posted, they must be revised to be useful to our
bureaus and the public.
Several reviewers expressed concern that the September 4, 2003,
Federal Register notice did not explain all of the changes or did not
provide explicit, highlighted changes.
We believe that we did provide sufficient explanation of the
material presented, and we cited the Internet location of the current
procedures so that anyone wishing to download them and make their own
comparisons could do so. Further, a contact was given for any questions
from the public. Any requests for a paper copy of the current chapters
would have been honored. No such requests were received.
Several reviewers noted our citation of Executive Order 13212 in
the supplemental information and expressed concern that this
represented a particular emphasis on expediting energy projects and
that the reference to 516 DM 4.16 was incorrect.
This portion of the SUPPLEMENTARY INFORMATION was merely intended
to display the various procedural requirements that this publication
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would have had to address had it been a rulemaking. There was no
intention to indicate any emphasis on the application of Executive
Order 13212 over any other requirement that applies to the Department.
The reference to 516 DM 4.16 was an error in publication, and it should
have been 516 DM 4.17 as the reviewer noted. It has been changed in
this version.
Relationship of these revised departmental NEPA procedures to
current NEPA compliance and Federal financial assistance program
activities of the Department's Fish and Wildlife Service.
Several reviewers remain concerned about this publication and its
perceived increase in workload under the Federal financial assistance
programs of the Fish and Wildlife Service (FWS). The concerns are: (1)
Federal aid program activities will be subject to an increasing amount
of environmental assessments when categorical exclusions should be able
to provide adequate NEPA compliance, (2) EAs should only be used to
determine if an EIS is necessary under Federal aid grant programs, (3)
Federal aid grants for maintenance work often receive more
environmental analysis than is warranted because Federal managers
return to the base project for their NEPA analysis when only the
maintenance activity should be examined, and (4) Certain additions to
Appendix 1--containing the Department's categorical exclusions (CXs)
need to be made to further the use of CXs in Federal aid programs.
We appreciate the comments that have been made in this area and
have reviewed them for any possible changes to the Departmental Manual.
However, these comments and recommendations are the concern of and
better answered by the Department's Fish and Wildlife Service. The
Departmental NEPA procedures serve as umbrella procedures for all of
the bureaus in the Department and do not provide a level of detail
sufficient to apply to all the bureaus and their varied mandates,
missions, and needs.
The FWS NEPA procedures in the Departmental Manual, which address
the requirements set forth in 516 DM 6.5, were last published as final
procedures on January 16, 1997. All public comments were considered and
were incorporated into the final FWS procedures. The FWS will be
reviewing and revising as necessary its NEPA guidance following final
publication of the Departmental Manual.
Since these comments and recommendations are concerned with the
program activities of the Fish and Wildlife Service, they have been
forwarded to that bureau for their use in any future revision of
Chapter 8.
One reviewer expressed concern that the department's procedures
should await the completion of CEQ's guidance arising from the CEQ task
force report on moderizing NEPA implementation.
During development of the September 4, 2003, publication, the
Department was in contact with CEQ staff concerning the new concepts
and changes that were being written into the manual chapters. CEQ made
suggestions for improvement and generally indicated that the
Department's changes were consistent with the information being
collected for their report, ``Modernizing NEPA Implementation.'' We
believe that it is unnecessary to wait for CEQ to complete any new
guidance arising from the report recommendations since the Department
maintains its own guidance system to further explain or interpret new
guidance from CEQ or elsewhere. Reviewers are referred to our
environmental statement memorandum series at http://www.doi.gov/oepc/ememoranda.html
.
One reviewer was concerned with the chapter 1 references to the
department and its officers interpreting and administering the
policies, regulations, and public laws of the United States in
accordance with NEPA.
We do not believe there is a problem with this language since it is
consistent with section 102(1) of NEPA.
One reviewer pointed out that states have public participation
processes that may be duplicated by the department and create
confusion.
The reviewer indicated that the Department should accept State
public participation processes as adequate and move toward use of
cooperative agreements to further the Federal/State roles in producing
NEPA compliance documents. We agree in general and understand that
several States have adequate public participation programs. The CEQ
Regulations at 40 CFR 1506.6 require the Department to provide for
public involvement and this has been a cornerstone of the Department's
NEPA procedures for many years. To address this comment, we have
allowed for public involvement to be accomplished through local
partnerships in 516 DM 1.2B.
One reviewer commented that DOI should hold its employees fully
accountable for their actions when carrying out their responsibilities
during consensus-based management. The reference was to our statement
concerning Executive Order 12630 in the procedural requirements below.
We appreciate the comment and can assure reviewers that
Departmental employees are fully bound by these procedures and
Executive Order 12630 and are expected to carry out their
responsibilities accordingly.
Several reviewers offered comments on the Bureau of Land
Management's willingness to comply fully with the policy statements of
516 DM 1.
All bureaus of the Department are bound by these procedures as well
as their NEPA procedures set out in their chapters and handbooks. BLM
has participated vigorously in the development of the Department's new
procedures and plans to move rapidly toward updating its chapter and
handbook to conform to the new Departmental procedures. We have
forwarded these specific comments to the bureau for its information and
consideration in their revision efforts.
Several reviewers commented that Federal permitting processes
remain cumbersome, complex, and unpredictable.
We agree and believe that we have addressed many of these problems
to the best of our ability in these chapters. The revisions emphasize
combining analyses when practicable and, where appropriate, using
information from one study in another. Both of these techniques should
help decrease the cumbersomeness, complexity, and unpredictability of
the NEPA process. The Departmental Manual NEPA chapters provide
oversight guidance for eight bureaus with very diverse missions and
statutory authorities, and, therefore, must balance both general and
specific coverage for a number of issues. Also a specific environmental
statement memorandum has been issued covering this topic. Reviewers are
referred to our environmental statement memorandum series at: http://www.doi.gov/oepc/ememoranda.html
.
One reviewer commented directly and others implied in some portions
of their comments that the revised procedures were a positive step
forward to improve NEPA implementation in the department.
We appreciate these comments.
Several reviewers offered comments proposing no changes to the text
of the chapters or comments expressing an opinion on the department's
proposed changes.
These comments were all read and considered; and, in some cases,
assisted our revision of specific sections of the procedures or
supported other reviewers' recommendations. We appreciate the input
provided in these comments.
[[Page 10868]]
516 DM 1
1.2 Policy
One reviewer recommended a wording change to 1.2B and 1.2C
concerning references to section 101 of NEPA and to the definition of
the human environment in 40 CFR 1508.14.
We agree and have amended both subparts along with subpart 1.2D.
1.3 General Responsibilities
One reviewer suggests that our requirements in 1.3D(4) are beyond
the scope of NEPA.
We disagree and refer reviewers to sections 102(1), 102(2)(A),
102(2)(G), 102(2)(H), and 104(1).
Several reviewers commented on the concept of consensus-based
management in 1.3D(5).
Comments were both for and against our use of the concept and also
offered using the term ``information-based management'' as a
substitute. Some concern was voiced about compliance with the Federal
Advisory Committee Act (FACA) and that States may have to provide
training on Federal laws for which they have no expertise and often
have no funds to provide any training. We have reviewed the subpart
again and believe that these concerns are unfounded. We also refer the
reviewers to our environmental statement memorandum on the Web site
noted above under the general comment on the NEPA Task Force Report. We
feel that sufficient flexibility is built into these new concepts to
make them workable under existing budget conditions at both Federal and
State levels. Finally, legal review of our consensus-based management
advises that it is compliant with FACA.
Several reviewers spoke in support of tiered and transferred
analyses in 1.3D(6).
The support is appreciated.
Several reviewers spoke in support of the adaptive management
concept introduced in 1.3D(7).
We appreciate the support.
One reviewer suggest the addition of the CEQ Regulations to
1.3E(1).
We agree and have done so.
One reviewer suggested that collecting baseline data be added to
1.3E(3) and adding a similar passage to 4.17C.
We believe that the general requirement in 1.4A(4) is sufficient to
bind Departmental managers on this subject.
1.4 Consideration of Environmental Values
One reviewer voiced support for 1.4A(1).
We appreciate the support.
One reviewer voiced support for 1.4A(3).
We appreciate the support.
Several reviewers commented on and suggested wording changes to the
baseline data provision in 1.4A(4).
The Department understands that baseline data are both necessary to
environmental analysis and can be controversial from the standpoint of
determining what the baseline is and how to get those data for a given
project. We believe that this subpart is appropriate for the Department
and its bureaus as written. We believe that it is best to provide
Departmental managers with this overall guidance and let project
specific NEPA documents and their public comments determine whether
baseline has been properly defined and documented.
Several reviewers commented on 1.4A(5) giving support, concerned
about requiring combined EISs in the same area, and concerned that CXs
ignore cumulative impacts.
This provision is written with sufficient flexibility to allow
Departmental managers to determine the best way to integrate existing
environmental analyses and data into their NEPA documents and does not
require combined NEPA documents by several agencies unless that is the
most efficient and effective method to adequately comply with NEPA. We
also call attention to extraordinary circumstance 2.6 in 516 DM 2;
Appendix 2 that is intended to assure that cumulative impacts are not
ignored when applying CXs.
One reviewer noted that 1.4A(6) does not and should not require
completion of all approvals before DOI completes a NEPA document.
This is understood and Departmental EISs have always identified and
discussed any remaining approvals needed before an action could be
taken.
One comment supported 1.4B.
We appreciate the comment.
1.5 Consultation, Coordination, and Cooperation With Other Agencies and
Organizations
Several comments were made on 1.5A(1) concerning the applicability
of certain laws such as the Patriot Act and the Federal Land Policy and
Management Act.
We have reviewed the subpart and have added the qualifier ``to the
extent allowed by law'' in the second sentence. The comments are well
founded, but because several other statutes are applicable and
applicability can vary depending upon the case at hand, we took a more
general approach to fixing the subpart in a way that provides coverage
for both current and future laws.
A reviewer expressed support for 1.5A(3) concerning the use of
electronic systems but cautioned against total reliance on them.
We understand the concern that many portions of the public still do
not have computers or Internet access. Our guidance memorandum on this
topic (see http://www.doi.gov/oepc/ememoranda.html) and 1.5A(2)
requires our bureaus to continue providing paper copies of NEPA
documents to anyone requesting them.
Two different comments were received on 1.5B(3). One concerned the
potential exclusion of certain interested parties in projects involving
international considerations. The other was that DOI would consider
global implications such as climate change and deforestation in its
decision-making.
There is no intent to exclude appropriate interested parties in
this subpart, and the subpart has been revised accordingly. The subpart
is a broad statement that the Department will play an appropriate role
in international environmental issues to the extent it is authorized to
do so. The subpart recognizes the concepts set forth in section
102(2)(F) of the Act and further embodied in Executive Order 12114
(Environmental Impacts Abroad of Major Federal Actions).
1.6 Public Involvement
A reviewer commented that this section should only be an issue if
the Federal agency can demonstrate that a State has no public
participation program.
As noted above in the general discussion of State public
participation programs, public participation is required of all Federal
agencies. It is not our intent to ignore the efforts of State
governments to fully involve the public nor should our efforts
duplicate State efforts. The Department is fully aware of 40 CFR
1500.4(n) which calls for eliminating duplication with State and local
procedures. Departmental managers are expected to combine their efforts
with States when it is appropriate, as determined by both governments.
One reviewer supported 1.6B on NEPA status reporting.
We appreciate the comment.
516 DM 2
2.1 Purpose
A reviewer has commented on the seemingly restrictive character of
the often used phrase: Federal, State, and
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local agencies (including Tribal governments) in this chapter. The
concern is that other interested parties may not qualify for joint lead
and cooperating agency roles or for general involvement in NEPA
compliance activities.
NEPA is a Federal statute and its provisions, as well as the
Departmental and bureau procedures, govern DOI's implementation.
However, this does not preclude the involvement of interested parties
that are not local governments from participating in scoping and in the
development of NEPA analyses and documents. The CEQ Regulations at 40
CFR 1501.2(d)(2) require that Federal agencies consult early with
appropriate State and local agencies and Indian tribes and with
interested private persons and organizations when such involvement is
reasonably foreseeable. There are a number of other places in the
regulations and this Departmental Manual that provide for public
involvement and stress public involvement as an important part of full
NEPA compliance. See also 2.2D and 2.6B. Finally, it is noted that the
Department did not fairly paraphrase in footnote 4 the meaning of the
July 1999, September 2000, and January 2002 CEQ guidance on the topic
of cooperating agencies. We have reviewed our footnote and the CEQ
guidance and believe that we have properly portrayed CEQ's meaning by
paraphrasing their discussion urging Federal agencies to more actively
solicit participation from State and local agencies.
2.2 Apply NEPA Early
A county reviewer is concerned that 2.2A does not explicitly
include counties for consultation purposes.
Please see the response given above in 2.1 to a similar concern.
Counties are included as units of local government.
One reviewer has indicated support for subpart 2.2A.
We appreciate the support.
One reviewer has indicated support for subpart 2.2B.
We appreciate the support.
Several reviewers commented on subpart 2.2D concerned that
consensus should not be required on any part of the process beyond
identification of issues and concerned that interested parties who
decline their participation early may not enter the process at a later
date.
We have reviewed the subpart and determined that only minor
adjustments were needed. The subpart currently handles the subject with
a moderate approach both promoting the use of consensus-based
management while recognizing the limits on its use due to statutory,
regulatory, and policy constraints. Concerning the late introduction of
issues, we believe the current language is satisfactory and allows the
individual manager to handle the late introduction of issues and
alternatives in an appropriate manner. Another specific comment
requested specific timelines and notice for comment. Again, we believe
that these procedures should not usurp the local manager's ability to
work out arrangements with interested parties that fit the individual
situation.
One reviewer recommended a new 2.2F that would clearly indicate
that NEPA applied only to Federal actions.
We have made this addition.
2.3 Whether To Prepare an EIS
One reviewer recommended that subpart 2.3A(1) be revised in (b) to
read as follows:
Unresolved conflicts concerning alternative uses of available
resources will not be a sole reason to disallow the use of an otherwise
acceptable categorical exclusion.
This arises from a general concern from several reviewers that
unresolved conflicts should not be a reason for not applying a specific
categorical exclusion as expressed in extraordinary circumstance 2.3 or
that unresolved conflicts should even be a criterion for establishing a
category. There was additional comment that our reference to section
102(2)(E) of NEPA was also a misinterpretation of the Act.
We considered these concerns and removed the unresolved conflicts
criterion in 2.3A(1)(b) but have not removed that same portion of
extraordinary circumstance 2.3. At least one bureau has indicated that
this addition to the extraordinary circumstance is necessary in the
successful application of their categorical exclusions. Finally, we
believe that our reference to section 102(2)(E) is appropriate and is
further confirmed in 40 CFR 1507.2(d).
A reviewer suggested that 2.3A(3) concerning documentation of
categorical exclusions not include extensive review and documentation
as noted in the CEQ NEPA Task Force report.
The subpart calls for ``* * * sufficient environmental review to
determine whether it meets any of the extraordinary circumstances. * *
* '' We believe that this is satisfactory language to cover this issue.
One reviewer expressed support for 2.3D.
We appreciate the support.
One reviewer expressed support for 2.3F.
We appreciate the support.
2.4 Lead Agencies
One reviewer suggested that 2.4E needs to list statutes in which
lead agency designations may be required.
We have researched this and were advised that the Natural Gas Act
is one statute where the lead agency is designated to be the Federal
Energy Regulatory Commission. We do not believe that a change is
warranted because these statutes will surface in any NEPA proceeding
where they may have an impact and will not be overlooked. Further,
these procedures necessarily refrain from publishing lists and other
specific data which may change periodically and would thereby require
the Department to revise these procedures. Instead, the Department has
an environmental guidance memorandum system where data such as this may
be made available (see http://www.doi.gov/oepc/ememoranda.html).
2.5 Cooperating Agencies
Several reviewers commented on 2.5D from the standpoint of needing
high level clearance, use of specific wording from the CEQ Regulations,
and lack of funding at the local level.
We have considered these comments and made some changes to the
subpart to be more specific about what should happen between bureaus
and cooperating agencies. We believe the subpart now reflects the
regulations to the best extent possible. As a practical matter,
cooperating agency arrangements are best made at the local manager's
level so that work can begin and proceed efficiently without requiring
and waiting for clearance from higher levels. In the event that
cooperating agencies do not meet their commitments, higher level
managers can be brought in at the appropriate time to help resolve any
differences. On the subject of funding raised by one of the reviewers,
it is recognized that local governments qualifying for cooperating
agency status may not always have sufficient funds to participate. The
CEQ Regulations allow for this in 40 CFR 1501.6(b)(5) and this is taken
into account in the factors provided with the January 2002 guidance
memorandum from CEQ, but, unfortunately, some opportunities may be
missed due to resource limitations.
2.6 Scoping
A reviewer commented in 2.6A that counties with limited budgets and
staff should be able to receive direct invitations to scoping meetings.
We understand the budget constraints that governments may have from
time to
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time but believe that notices of intent to do an EIS and hold scoping
meetings are now easily obtained from the Federal Register online.
Local notifications are often published in newspapers and newsletters.
Several reviewers offered support for 2.6B, made a suggested
revision to include State, local, and Tribal governments, and called
attention to the applicability of a previous comment made on 1.5A(1).
We appreciate the support and have made the suggested change to the
extent we felt was necessary. Regarding subpart 1.5A(1), we refer the
reviewer to the response made there.
A reviewer offered support for 2.6C.
Again, we appreciate the support.
2.7 Time Limits
Several reviewers recommended that 2.7A be strengthened to require
time limits.
We believe that the subpart as written best complies with the CEQ
Regulations on this topic. In 40 CFR 1501.8, CEQ recognized that
prescribed time limits would be too inflexible. Further, our experience
with prescribed time limits for the preparation of NEPA analyses and
documents as well as other Departmental matters show that unforeseen
events can cause missed deadlines, but that progress continues to be
made.
In subpart 2.7B it is recommended that staff should be assembled
and trained in the type of project to be analyzed.
We have made minor changes to this subpart to reinforce this
concept.
Appendix 1
One reviewer indicated continued opposition to CXs 1.11 and 1.12
concerning fuels reduction and rehabilitation.
The comment is noted, but no change will be made since these CXs
were the subject of previous notice and comment prior to their
adoption.
It was also recommended that CX 1.8 be narrowed to exclude minor
boundary changes and land titles.
Again, no change will be made since the historical exercise of this
CX has not uncovered systemic abuse of its use or any reason to re-
evaluate its use.
Appendix 2
Several reviewers commented on the need for objective standards in
the extraordinary circumstances and recommended re-wording of several
of them.
We have reviewed the extraordinary circumstances with these
comments in mind and have made several changes to bring about more
continuity and objectivity. Particularly, we have used the word
significant as used in the definition of categorical exclusion in 40
CFR 1508.4. We have also made direct changes to some of them as
recommended by the public comments. On those recommended word changes
where we disagreed, we have made no changes. Following are specific
responses to comments on each extraordinary circumstance.
2.1--We have substituted the term ``significant impacts'' for the
term ``significant adverse affects.'' This change acknowledges the fact
that a categorical exclusion may not be warranted if the proposed
action may have affects that are largely positive or negative.
2.2--We have used the phrase ``significant impacts,'' at the
beginning to help create consistency. We have added migratory birds. We
have not added the phrase, under Federal ownership or jurisdiction, as
suggested, because project effects may impact areas adjacent to Federal
lands.
2.3--No change.
2.4--No change. One reviewer did suggest deletion of this
extraordinary circumstance. However, we have determined that it should
be retained because our experience has shown that it is sometimes
needed and used.
2.5--No change.
2.6--We revised this to be more consistent with the other
extraordinary circumstances.
2.7--We have used the phrase ``significant impacts,'' at the
beginning to help create consistency.
2.8--We have used the phrase ``significant impacts,'' throughout to
help create consistency. We have retained the phrase, proposed to be
listed, because it is contained in the Endangered Species Act and
serves to alert analysts, reviewers, proponents, and decision makers of
the pending possibility of listing.
2.9--We have made minor modifications.
2.10--We have made minor modifications.
2.11--We have added the phrase, on Federal lands, to clarify this
point.
2.12--We have made minor modifications.
Several reviewers expressed continued concern that we do not
require the presence of an extraordinary circumstance to halt the use
of a CX but allow the phrase ``* * * have significant adverse effects
on * * *'' to be the determining factor.
Experience has shown that the Department must have some leeway in
this matter to allow local managers to make a determination on whether
to use a CX. There are those who wish to have no CXs applied and those
who wish to have more CXs and less EAs and EISs produced. The varied
missions of the Department call for balancing these competing interests
to serve the public in the best possible way. We have retained the
spirit of this section while changing the wording to ``significant
impact.''
516 DM 3
3.3 Public Involvement
Several reviewers made comments from differing points of view on
3.3B.
We believe that our revised wording is now consistent with the CEQ
Regulations and the policy statements made earlier in chapter 1 of this
part.
516 DM 4
4.3 Timing
One reviewer supports 4.3A.
We appreciate the support.
Several reviewers requested a change in 4.3B concerning the
offshore minerals example.
Based on the comments and the cited court cases, we have made the
change.
4.10 Alternatives Including the Proposed Action
One reviewer recommended the addition of an item on the human
environment.
We have made a reference to 40 CFR 1508.14 in subpart 1.2D. Such an
addition in 4.10A would not be consistent with the intent of the
subpart which describes the commonly used terms when dealing with NEPA
alternatives.
One reviewer suggests a revision to 4.10A(2), reasonable
alternative.
We decline to make the change since the language was derived from
Question 2 in CEQ's ``Forty Most Asked Questions'' guidance document.
One reviewer suggested a change for 4.10A(4), preferred
alternative.
We have changed the definition to conform more precisely with that
given in the ``Forty Most Asked Questions.''
One reviewer recommended that 4.10A(5), environmentally preferred
alternative be omitted from the subpart. Further the reviewer indicated
that the term does not appear in NEPA documentation.
We disagree and have not omitted the subpart. Both 40 CFR 1505.2(b)
and the ``Forty Most Asked Questions'' discuss the term.
A reviewer recommends defining the term, participating communities
in 4.10D.
We have opted to change the word ``communities'' to the phrase
[[Page 10871]]
``interested parties'' which is more consistent with other references
to this topic throughout the chapters.
4.12 Tiering
One reviewer supports 4.12B.
We appreciate the support.
4.15 Methodology and Scientific Accuracy
A reviewer recommended that we add language to 4.15 to identify the
information quality requirements that were established by Section 515
of the Treasury and General Government Appropriation Act for Fiscal
Year 2001.
We have made this addition.
4.16 Adaptive Management
One reviewer commented that they support the concept of a working
group on adaptive management to be set up under the CEQ NEPA Task Force
report and suggests that DOI wait for the outcome before incorporating
adaptive management activities into bureau activities.
We have indicated above in a general comment on the NEPA Task Force
report that we have the flexibility to react to any changes that arise
from the working group's recommendations. Some of the Department's
bureaus already have experience in the use of adaptive management in
their programs dating back a number of years. The Department is
comfortable with this addition to the procedures and believes that the
subpart provides the basics of adaptive management so that any future
adjustments can be made through our environmental guidance memoranda
series.
Another reviewer noted that adaptive management could be used to
make multiple decisions without doing additional environmental analysis
and offered a number of references describing adaptive management and
how it should be used.
We appreciate the information and will continue to consider it as
we apply adaptive management. The Department is well aware of the
possibility that adaptive management could be used to confuse
environmental issues and lead to possible multiple decisions
(piecemealing). However, our experience shows that DOI has properly
used adaptive management to achieve better mitigation in the absence of
a full knowledge of impacts at the time the analysis is performed.
A final comment endorsed the change in management approach when
anticipated mitigation outcomes are not being met.
We agree.
4.17 Environmental Review and Consultation Requirements
A reviewer noted support for 4.17C but cautioned that not all
approvals had to be in place before completing the EIS.
The text has been modified to show this.
4.19 Response to Comments.
A reviewer commented that 4.19A and B contradicted other subparts,
particularly 2.2B and D on involving interested parties early and
eliminating late input to the NEPA process.
We have reviewed these subparts, modified both of them, and related
4.19B to 2.2D. We wish to point out, however, that 2.2D is primarily
aimed at the late introduction of issues and alternatives and that
4.19A and B are discussing any late comments regardless of their
content.
4.25 Proposals for Legislation
A reviewer expressed support for 4.25B.
We appreciate the support.
4.26 Time Periods
A reviewer has recommended the retention of the 60 day review
period for draft EISs.
This subpart was changed to mesh properly with the EPA filing
process. Forty five (45) days is the minimum public comment period for
draft EISs prescribed by the CEQ Regulations and is counted from the
publication of EPA's notice of availability. This often means that an
EIS has been printed and sent to the public as much as five to seven
days prior to the EPA notice appearing in the Federal Register. So
receipt by the public is usually coincident with the EPA publication.
On complex or controversial projects, our bureaus have provided longer
comment periods (e.g., 60 to 90 days), and they retain this
flexibility. Therefore, no change has been made.
516 DM 5
5.5 Implementing the Decision
It was recommended that the word natural be deleted from the
subpart.
We disagree and have not made the change. The definition of human
environment in 40 CFR 1508.14 clearly says that human environment is to
include the natural and physical environment.
5.8 Emergencies
A suggestion was made that the phrase: serious resource losses be
struck from the discussion in this subpart.
The topic of emergencies was reviewed in the Department in 1997,
and further guidance was developed for bureaus which included
additional CEQ guidance on the topic. This guidance is available in an
environmental statement memorandum, ESM97-3, that is available on the
Web site noted earlier in this manual. We decided, based upon actual
emergency experience in the Department in 1997, that the two most
important points to address in the manual were: (1) Take the action if
life, property, and resources are threatened and (2) immediately
consult with the Department and CEQ if there are significant impacts.
The guidance contained in ESM97-3 uses the phrase, important resource,
and indicates that importance may reflect economic, social, or cultural
values. We have changed the subpart to use the term, important
resources.
516 DM 7
7.4 Types of Reviews
One reviewer has recommended that the National Historic
Preservation Act be added to 7.4K.
We have made this change.
Procedural Requirements: The following list of procedural
requirements has been assembled and addressed to contribute to this
open review process. Today's publication is a notice of final, internal
Departmental action and not a rulemaking. However, we have addressed
the various procedural requirements that are generally applicable to
proposed and final rulemaking to show how they would affect this notice
if it were a rulemaking.
Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993) it has
been determined that this action is the implementation of policy and
procedures applicable only to the Department of the Interior and not a
significant regulatory action. These policies and procedures would not
impose a compliance burden on the general economy.
Administrative Procedures Act
This document is not subject to prior notice and opportunity to
comment because it is a general statement of policy and procedure [(5
U.S.C. 553(b)(A)]. However, notice and opportunity to comment is
required by the CEQ Regulations [40 CFR 1507.3(a)].
Regulatory Flexibility Act
This document is not subject to notice and comment under the
Administrative Procedures Act, and, therefore, is not subject to the
analytical requirements of the Regulatory Flexibility Act (5 U.S.C.
[[Page 10872]]
601 et seq.). This document provides the Department with policy and
procedures under NEPA and does not compel any other party to conduct
any action.
Small Business Regulatory Enforcement Fairness Act
These policies and procedures do not comprise a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
The document will not have an annual effect on the economy of $100
million or more and is expected to have no significant economic
impacts. Further, it will not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions and will impose no
additional regulatory restraints in addition to those already in
operation. Finally, the document does not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States based enterprises to
compete with foreign based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.), this document will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required. The
document does not require any additional management responsibilities.
Further, this document will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a significant
regulatory action under the Unfunded Mandates Reform Act. These
policies and procedures are not expected to have significant economic
impacts nor will they impose any unfunded mandates on other Federal,
State, or local government agencies to carry out specific activities.
Federalism
In accordance with Executive Order 13132, this document does not
have significant Federalism effects; and, therefore, a Federalism
assessment is not required. The policies and procedures will not have
substantial direct effects on the States, on the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. No
intrusion on State policy or administration is expected, roles or
responsibilities of Federal or State governments will not change, and
fiscal capacity will not be substantially, directly affected.
Therefore, the document does not have significant effects or
implications on Federalism.
Paperwork Reduction Act
This document does not require information collection as defined
under the Paperwork Reduction Act. Therefore, this document does not
constitute a new information collection system requiring Office of
Management and Budget (OMB) approval under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
National Environmental Policy Act
The Council on Environmental Quality does not direct agencies to
prepare a NEPA analysis or document before establishing agency
procedures that supplement the CEQ regulations for implementing NEPA.
Agency NEPA procedures are internal procedural guidance to assist
agencies in the fulfillment of agency responsibilities under NEPA, but
are not the agency's final determination of what level of NEPA analysis
is required for a particular proposed action.
Essential Fish Habitat
We have analyzed this document in accordance with section 305(b) of
the Magnuson-Stevens Fishery Conservation and Management Act and
determined that issuance of this document will not affect the essential
fish habitat of Federally managed species; and, therefore, an essential
fish habitat consultation on this document is not required.
Consultation and Coordination With Indian Tribal Governments
In accordance with Executive Order 13175 of November 6, 2000, and
512 DM 2, we have assessed this document's impact on tribal trust
resources and have determined that it does not directly affect tribal
resources since it describes the Department's procedures for its
compliance with NEPA.
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211 of May 18, 2001, requires a Statement of
Energy Effects for significant energy actions. Significant energy
actions are actions normally published in the Federal Register that
lead to the promulgation of a final rule or regulation and may have any
adverse effects on energy supply, distribution, or use. We have
explained above that this document is an internal Departmental Manual
part which only affects how the Department conducts its business under
the National Environmental Policy Act. This manual part is not a
rulemaking; and, therefore, not subject to Executive Order 13211.
Actions To Expedite Energy-Related Projects
Executive Order 13212 of May 18, 2001, requires agencies to
expedite energy-related projects by streamlining internal processes
while maintaining safety, public health, and environmental protections.
Today's publication is in conformance with this requirement as it
promotes existing process streamlining requirements and revises the
text to emphasize this concept (see chapter 4, subpart 4.17).
Government Actions and Interference With Constitutionally Protected
Property Rights
In accordance with Executive Order 12630 (March 15, 1988) and part
318 of the Departmental Manual, the Department has reviewed today's
notice to determine whether it would interfere with constitutionally
protected property rights. Again, we believe that as internal
instructions to bureaus on the implementation of the National
Environmental Policy Act, this publication would not cause such
interference.
(Authority: NEPA, the National Environmental Quality Improvement Act
of 1970, as amended (42 U.S.C. 4371 et seq.); E.O. 11514, March 5,
1970, as amended by E.O. 11991, May 24, 1977; and CEQ Regulations 40
CFR 1507.3)
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 1: Protection and Enhancement of Environmental Quality.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 1
1.1 Purpose
This Chapter establishes the Department's policies for complying
with title I of the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321-4347) (NEPA); section 2 of Executive Order
11514, Protection and Enhancement of Environmental Quality, as amended
by Executive Order 11991; Executive Order 12114, Environmental Effects
Abroad of Major Federal Actions; and the regulations of the Council on
Environmental Quality (CEQ)
[[Page 10873]]
implementing the procedural provisions of NEPA (40 CFR 1500-1508;
identified in this Part 516 as the CEQ Regulations).
1.2 Policy
It is the policy of the Department:
A. To provide leadership in protecting and enhancing those aspects
of the quality of the Nation's environment which relate to or may be
affected by the Department's policies, goals, programs, plans, or
functions in furtherance of national environmental policy;
B. To the fullest practicable extent, to encourage public
involvement in the development of Departmental plans and programs
through State, local, and Tribal partnerships and cooperative
agreements at the beginning of the NEPA process, and to provide timely
information to the public to better assist in understanding such plans
and programs affecting environmental quality in accordance with the CEQ
Regulations;
C. To interpret and administer, to the fullest extent possible, the
policies, regulations, and public laws of the United States
administered by the Department in accordance with the requirements of
sections 101 and 102 of NEPA;
D. To consider and give important weight to environmental factors,
along with other societal needs, in developing proposals and making
decisions in order to achieve a proper balance between the development
and utilization of natural, cultural, and human resources and the
protection and enhancement of environmental quality (see section 101 of
NEPA and 1508.14);
E. To consult, coordinate, and cooperate with other Federal
agencies and, particularly, State, local, Alaska Native Corporations,
and Indian tribal governments in the development and implementation of
the Department's plans and programs affecting environmental quality
and, in turn, to give consideration to those activities that succeed in
best addressing State and local concerns;
F. To be innovative in natural resource protection and to use all
practicable means, consistent with other essential considerations of
national policy, to improve, coordinate, and direct its policies,
plans, functions, programs, and resources in furtherance of national
environmental goals;
G. To rigorously integrate systematic, interdisciplinary approaches
into the design of all activities and to base decision making on
adequate environmental data in order to identify reasonable
alternatives to proposed actions that will avoid or minimize adverse
environmental impacts;
H. Where necessary, to monitor, evaluate, and control activities to
protect and enhance the quality of the environment and to base decision
making on monitoring data and evaluation results; and
I. To cooperate with and assist the CEQ.
1.3 General Responsibilities
The following responsibilities reflect the Secretary's decision
that the officials responsible for making program decisions are also
responsible for taking the requirements of NEPA into account in those
decisions and will be held accountable for that responsibility:
A. Assistant Secretary--Policy, Management and Budget (AS/PMB)
(1) Is the Department's focal point on NEPA matters and is
responsible for overseeing the Department's implementation of NEPA.
(2) Serves as the Department's principal contact with the CEQ.
(3) Assigns to the Director, Office of Environmental Policy and
Compliance (OEPC), the responsibilities outlined for that Office in
this Part.
B. Solicitor
Is responsible for providing legal advice in the Department's
compliance with NEPA.
C. Assistant Secretaries
(1) Are responsible for compliance with NEPA, Executive Order
11514, as amended, Executive Order 12114, the CEQ Regulations, and this
Part for bureaus and offices under their jurisdiction.
(2) Shall ensure that, to the fullest extent possible, the
policies, regulations, and public laws of the United States
administered under their jurisdiction are interpreted and administered
in accordance with the requirements of NEPA.
D. Heads of Bureaus and Offices
(1) Must comply with the provisions of NEPA, Executive Order 11514,
as amended, Executive Order 12114, the CEQ Regulations, and this Part.
(2) Shall interpret and administer, to the fullest extent possible,
the policies, regulations, and public laws of the United States
administered under their jurisdiction in accordance with the
requirements of NEPA.
(3) Shall continue to review their statutory authorities,
administrative regulations, policies, programs, and procedures,
including those related to loans, grants, contracts, leases, licenses,
or permits, in order to identify any deficiencies or inconsistencies
therein which prohibit or limit full compliance with the intent,
purpose, and provisions of NEPA and, in consultation with the Solicitor
and the Office of Congressional and Legislative Affairs, shall take or
recommend, as appropriate, corrective actions as may be necessary to
bring these authorities and policies into conformance with the intent,
purpose, and procedures of NEPA.
(4) Shall monitor, evaluate, and control on a continuing basis
their activities as needed to protect and enhance the quality of the
environment. Such activities will include both those directed to
controlling pollution and enhancing the environment and those designed
to accomplish other program objectives which may affect the quality of
the environment. They will develop programs and measures to protect and
enhance environmental quality. They will assess progress in meeting the
specific objectives of such activities as they affect the quality of
the environment.
(5) Shall, in furtherance of public participation practices (see
1.2B, above), use consensus-based management \1\ and community-based
NEPA training \2\ to the extent possible in all NEPA compliance
activities. Will ensure that the Department's collaborative efforts
under this part comply with the Federal Advisory Committee Act (FACA),
5 U.S.C., appendix.\3\
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\1\ Consensus-based management in the NEPA context is the
inclusion of interested parties with an assurance for the
participants that the results of their work will be given
consideration by the decision maker in selecting a course of action.
It is a logical outgrowth of public participation.
\2\ Community-based training in the NEPA context is the training
of local participants with Federal participants in the intricacies
of the environmental planning and decision making effort as it
relates to the local community(ies). It should de-mystify the
process and inform participants how to become effectively involved.
\3\ To ensure FACA compliance, each bureau and office will
verify whether FACA applies, and will ensure that the FACA
requirements are followed anytime the Department utilizes (i.e.
manages and controls) or establishes a group to be consulted or to
provide recommendations to a Departmental official.
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(6) Shall use tiered and transferred analyses to help avoid
needless repetition. They will require decision makers to produce NEPA
documents that save resources and reduce the public's perception that
NEPA documents merely accomplish compliance with a process and do not
add to the general knowledge of environmental impacts to natural
resources.
(7) Shall use adaptive management (see 516 DM 4.16) to fully comply
with 40 CFR 1505.2 which requires a monitoring and enforcement program
to
[[Page 10874]]
be adopted, where applicable, for any mitigation activity.
E. Heads of Regional, Field, or Area Offices
(1) Must comply with the provisions of NEPA, Executive Order 11514,
as amended, Executive Order 12114, the CEQ Regulations, and this Part.
(2) Shall use information obtained in the NEPA process, including
pertinent information provided by State and local agencies, Indian
tribal governments, and interest groups, to identify reasonable
alternatives to proposed actions that will avoid or minimize adverse
impacts to the human environment while improving overall environmental
results.
(3) Shall monitor, evaluate, and control their activities on a
continuing basis to further protect and enhance the quality of the
environment.
1.4 Consideration of Environmental Values
A. In Departmental Management
(1) In the management of the natural, cultural, and human resources
under its jurisdiction, the Department must consider and balance a wide
range of economic, environmental, and societal needs at the local,
regional, national, and international levels, not all of which are
quantifiable in comparable terms. In considering and balancing these
objectives, Departmental plans, proposals, and decisions often require
recognition of complements and resolution of conflicts among
interrelated uses of these natural, cultural, and human resources
within technological, budgetary, and legal constraints. Various
Departmental conflict resolution mechanisms are available to assist
this balancing effort.
(2) Departmental project reports, program proposals, issue papers,
and other decision documents must carefully analyze the various
objectives, resources, and constraints, and comprehensively and
objectively evaluate the advantages and disadvantages of the proposed
actions and their reasonable alternatives. Where appropriate, these
documents will contain or reference supporting and underlying economic,
environmental, technological, and other societal analyses in language
that all participants can understand and use.
(3) The underlying environmental analyses will factually,
objectively, and comprehensively analyze the environmental effects of
proposed actions and their reasonable alternatives. They will
systematically analyze the environmental impacts of alternatives, and
particularly those alternatives and measures that would reduce,
mitigate or prevent adverse environmental impacts or that would enhance
environmental quality. However, such an environmental analysis is not,
in and of itself, a program proposal or the decision document, is not a
justification of a proposal, and will not support or deprecate the
overall merits of a proposal or its various alternatives.
(4) Environmental analyses shall strive to provide baseline data
where possible and shall provide monitoring and evaluation tools as
necessary to ensure that an activity is implemented as contemplated by
the NEPA analysis. Baseline data gathered for these analyses may
include pertinent social, economic, and environmental data.
(5) If proposed actions are planned for the same geographic area or
are otherwise closely related, environmental analysis should be
integrated to ensure adequate consideration of resource use
interactions, to reduce resource conflicts, to establish baseline data,
to monitor and evaluate changes in such data, to adapt actions or
groups of actions accordingly, and to comply with NEPA and the CEQ
Regulations. Proposals shall not be segmented in order to reduce the
levels of environmental impacts reported in NEPA documents.
(6) When proposed actions involve approval processes of other
agencies, the Department shall use its lead role to identify
opportunities to consolidate those processes.
B. In Internally Initiated Proposals
Officials responsible for development or conduct of planning and
decision making systems within the Department shall incorporate
environmental planning as an integral part of these systems in order to
ensure that environmental values and impacts are fully considered,
facilitate any necessary documentation of those considerations, and
identify reasonable alternatives in the design and implementation of
activities that minimize adverse environmental impacts. An
interdisciplinary approach shall be initiated at the earliest possible
time to provide for consultation among all participants for each
planning or decision making endeavor. This interdisciplinary approach
should, to the extent possible, have the capacity to consider
innovative and creative solutions from all participants.
C. In Externally Initiated Proposals
Officials responsible for the development or conduct of loan,
grant, contract, lease, license, permit, or other externally initiated
activities shall require applicants, to the extent necessary and
practicable, to provide environmental information, analyses, and
reports as an integral part of their applications. As with internally
initiated proposals, officials shall encourage applicants and other
interested parties to consult with the Department and provide their
comments, recommendations, and suggestions for improvement.
1.5 Consultation, Coordination, and Cooperation with Other Agencies and
Organizations
A. Departmental Plans and Programs
(1) Officials responsible for planning or implementing Departmental
plans and programs will develop and utilize procedures to consult,
coordinate, and cooperate with relevant State, local, and Indian tribal
governments; other bureaus and Federal agencies; and public and private
organizations and individuals concerning the environmental effects of
these plans and programs on their jurisdictions or interests. Such
efforts should, to the extent allowed by law and in accordance with
FACA, include consensus-based management whenever possible. This is a
planning process that incorporates direct community involvement into
bureau activities from initial scoping through implementation of the
bureau or office decision and, in appropriate cases, monitoring and
future adaptive management measures. All bureau NEPA and planning
procedures will be made available to the public.
(2) Bureaus and offices will use, to the maximum extent possible,
existing notification, coordination, and review mechanisms established
by the Office of Management and Budget and CEQ. However, use of these
mechanisms must not be a substitute for early consultation,
coordination, and cooperation with others, especially State, local, and
Indian tribal governments.
(3) Bureaus and offices are encouraged to expand, develop, and use
new forms of notification, coordination, and review, particularly by
electronic means and the Internet. Bureaus are also encouraged to stay
abreast of and use new technologies in environmental data gathering and
problem solving.
[[Page 10875]]
B. Other Departmental Activities
(1) Technical assistance, advice, data, and information useful in
restoring, maintaining, and enhancing the quality of the environment
will be made available to other Federal agencies; State, local, and
Indian tribal governments; institutions; and other entities as
appropriate.
(2) Information regarding existing or potential environmental
problems and control methods developed as a part of research,
development, demonstration, test, or evaluation activities will be made
available to other Federal agencies; State, local, and Indian tribal
governments; institutions; and other entities as appropriate.
(3) Recognizing the worldwide and long-range character of
environmental problems and consistent with the foreign policy of the
United States, appropriate support will be made available (in
consultation with clearly defined interested parties including Tribal
governments, if applicable) to initiatives, resolutions, and programs
designed to maximize international cooperation in anticipating and
preventing a decline in the quality of the world environment.
C. Plans and Programs of Other Agencies and Organizations
(1) Officials responsible for protecting, conserving, developing,
or managing resources under the Department's jurisdiction shall
coordinate and cooperate with State, local, and Indian tribal
governments; other bureaus and Federal agencies; and public and private
organizations and individuals, and provide them with timely information
concerning the environmental effects of these entities' plans and
programs.
(2) Bureaus and offices are encouraged to participate early in the
planning processes of other agencies and organizations in order to
ensure full cooperation with, and understanding of, the Department's
programs and interests in natural, cultural, and human resources.
(3) Bureaus and offices will use, to the fullest extent possible,
existing Departmental review mechanisms to avoid unnecessary
duplication of effort and to avoid confusion by other organizations.
(4) Bureaus and offices will work closely with other Federal
agencies to ensure that similar or related proposed actions in the same
geographic area are fully evaluated to determine if agency analyses can
be integrated so that one NEPA compliance document can be used by all
for their individual permitting and licensing needs.
1.6 Public Involvement
A. Bureaus and Offices, in accordance with 301 DM 2 and this part,
will develop and implement procedures to ensure the fullest practicable
provision of timely public information and understanding of their plans
and programs with environmental impacts including information on the
environmental impacts of alternative courses of action. This is to
include public involvement in the development of NEPA analyses and
documents.
B. These procedures will include, wherever appropriate, provision
for public meetings in order to obtain the views of interested parties,
newsletters, and status reports of NEPA compliance activities. Public
information shall include all necessary policies and procedures
concerning plans and programs in a readily accessible, consistent
format.
C. Bureaus and offices will also coordinate and collaborate with
State and local agencies and Indian tribal governments in developing
and using similar procedures for informing the public concerning their
activities affecting the quality of the environment.
1.7 Mandate
A. This Part provides Department-wide instructions for complying
with NEPA, Executive Orders 11514, as amended by 11991 (Protection and
Enhancement of Environmental Quality) and 12114 (Environmental Effects
Abroad of Major Federal Actions), and the CEQ Regulations. The
provisions of part 516 are intended to establish guidelines to be
followed by the Department and its Bureaus, Services and Offices. Part
516 is not intended to, nor does it, create any right, benefit, or
trust responsibility, substantive or procedural, enforceable at law or
equity by any person or party against the United States, its agencies,
its officers, or any other person. The provisions of part 516 are not
intended to direct or bind any person outside the Department.
B. The Department hereby adopts the CEQ Regulations implementing
the procedural provisions of NEPA [sec. 102(2)(C)] except where
compliance would be inconsistent with other statutory requirements. In
the case of any discrepancies among these procedures and the NEPA
statute; Executive Orders 11514, 11991, and 12114; or the mandatory
provisions of the CEQ Regulations, the laws, executive orders, and
regulations shall govern.
C. Instructions supplementing the CEQ Regulations are provided in
chapters 2-7 of this part. Citations in brackets refer to the CEQ
Regulations.
D. Instructions specific to each bureau are found in chapters 8
through 15. This portion of the manual may expand or contract depending
on the number of bureaus existing at any particular time. In addition,
bureaus may prepare handbooks or other technical guidance for their
personnel on how to apply this part to principal programs. In the case
of any apparent discrepancies between these procedures and bureau
handbooks or technical guidance, 516 DM 2-7 shall govern.
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 2: Initiating the NEPA Process.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 2
2.1 Purpose
This Chapter provides supplementary instructions for implementing
those portions of the CEQ Regulations pertaining to initiating the NEPA
process. The numbers in parentheses signify the appropriate citation in
the CEQ Regulations.
2.2 Apply NEPA Early (40 CFR 1501.2)
A. Bureaus shall initiate early consultation and coordination with
other bureaus and any Federal agency having jurisdiction by law or
special expertise with respect to any environmental issue that should
be addressed, and with appropriate Federal, State, local and Indian
tribal governments authorized to develop and enforce environmental
standards or to manage and protect natural resources.
B. Bureaus shall also initiate the consultation process with
interested parties and organizations at the time an application is
received, or when the bureau initiates action on an agency plan or
project requiring NEPA analyses and documentation.
C. Bureaus shall revise or amend program regulations, requirements,
and directives to ensure that private or non-Federal applicants are
informed of any environmental information required to be included in
their applications and of any consultation with other Federal agencies,
or State, local, or Indian tribal governments required prior to making
the application. A discussion and a list of these regulations,
requirements, and directives are found in 516 DM 6.4 and
[[Page 10876]]
6.5. The specific regulations, requirements, and directives for each
bureau are found in separate chapters of this part beginning with
chapter 8.
D. It is imperative that bureaus enlist the participation of all
interested parties as early as possible and provide any necessary
community-based training in order to reduce costs, prevent delays, and
to promote efficiency in the NEPA process. It is the intent of these
procedures to achieve early consensus on the scope of NEPA compliance
and the methodologies for collecting needed baseline data. Consensus-
based management [as described in 516 DM 1.5(A)(1)] should be used, as
appropriate, to facilitate this process including the consideration of
any publicly developed alternatives. However, the use of consensus-
based management may be restricted or ended based on applicable
statutory, regulatory, or policy requirements. Further, it is the
intent of these procedures to facilitate environmental analyses that
avoid the late introduction of issues and alternatives that should have
been identified initially during scoping.
E. Bureaus shall engage in a rigorous interdisciplinary approach at
the earliest possible time to ensure adequate identification and
consideration of the wide variety of environmental factors and
considerations inherent in NEPA compliance activities.
F. NEPA applies to Department and bureau decision making and
focuses on major Federal actions significantly affecting the quality of
the human environment.
2.3 Whether To Prepare an Environmental Impact Statement (EIS) (40 CFR
1501.4)
A. Categorical Exclusions (CX) (40 CFR 1508.4)
(1) Categorical exclusions are defined as a group of actions that
would have no significant individual or cumulative effect on the
quality of the human environment and, for which in the absence of
extraordinary circumstances, neither an environmental assessment nor an
environmental impact statement is required.
(2) Based on (1) above, the categories of actions listed in
Appendix 1 to this Chapter are categorically excluded, Department-wide,
from the preparation of environmental assessments or environmental
impact statements. A list of CX specific to bureau programs will be
found in the bureau chapters beginning with chapter 8. Note that
1508.18(a) excludes bringing judicial or administrative civil or
criminal enforcement actions.
(3) The CEQ Regulations at 40 CFR 1508.4 require agency procedures
to provide for extraordinary circumstances in which a normally excluded
action may have a significant environmental effect thus requiring
additional analysis and action. The extraordinary circumstances to be
considered when using categorical exclusions are listed in appendix 2
of this chapter. Any action that is normally categorically excluded
must be subjected to sufficient environmental review to determine
whether it meets any of the extraordinary circumstances, in which case,
further analysis and environmental documents must be prepared for the
action. Bureaus are reminded and encouraged to work within existing
administrative frameworks, including any existing programmatic
agreements, when deciding how to apply any of the appendix 2
extraordinary circumstances.
B. Environmental Assessment (EA) (40 CFR 1508.9)
See 516 DM 3. Decisions/actions which would normally require the
preparation of an EA will be identified in each bureau chapter
beginning with chapter 8.
C. Finding of No Significant Impact (FONSI) (40 CFR 1508.13)
A FONSI will be prepared as a separate covering document based upon
a review of an EA. Accordingly, the words include(d) in Sec. 1508.13
will be interpreted as attach(ed) in reference to the EA.
D. Notice of Intent (NOI) (40 CFR 1508.22.)
An NOI will be prepared as soon as practicable after a decision to
prepare an EIS and shall be published in the Federal Register, with a
copy to the OEPC and made available to the affected public in
accordance with Sec. 1506.6. Publication of an NOI may be delayed if
there is proposed to be more than three (3) months between the decision
to prepare an EIS and the time preparation is actually initiated. The
notice, at a minimum, identifies key personnel, sets forth a schedule,
and invites early comment. Scoping requests generally announce a
schedule for scoping meetings where the agencies and the public can
participate in the formal scoping process. These notices are also
usually published in the Federal Register and may contain the text of a
draft scoping document that outlines the actions, alternatives, and
environmental issues and impacts identified at that time. The draft
scoping document may also be made available upon request to a contact
usually named in the notice.
E. Environmental Impact Statement (40 CFR 1508.11)
See 516 DM 4. Decisions/actions which would normally require the
preparation of an EIS will be identified in each bureau chapter
beginning with Chapter 8.
F. Existing environmental analyses should be used in analyzing
impacts of a proposed action to the extent possible and appropriate.
CEQ Regulations encourage agencies to make the best use of existing
NEPA documents and to avoid redundancy and unneeded paperwork through
supplementing, incorporating by reference, or adopting previous
environmental analyses. Use of existing documents carries with it a
presumption that the bureaus will determine, in a deliberative manner
and through agency procedures, that existing environmental analyses
still adequately cover current actions.
2.4 Lead Agencies (40 CFR 1501.5)
A. The AS/PMB shall designate lead bureaus within the Department
when bureaus under more than one Assistant Secretary are involved and
cannot reach agreement on lead bureau status. The AS/PMB shall
represent the Department in consultations with CEQ or other Federal
agencies in the resolution of lead agency determinations.
B. Bureaus will inform the OEPC of any agreements to assume lead
agency status. OEPC will assist in the coordination and documentation
of any AS/PMB designations made in 2.4A.
C. To eliminate duplication with State and local procedures, a non-
Federal agency (including Indian tribal governments) may be designated
as a joint lead agency when it has a duty to comply with State or local
requirements that are comparable to the NEPA requirements.
D. 40 CFR 1501.5 describes the selection of lead agencies, the
settlement of lead agency disputes, and the use of joint lead agencies.
While the joint lead relationship is not precluded among several
Federal agencies, the Department recommends that it be applied
sparingly and that one Federal agency be selected as the lead with the
remaining Federal, State, Indian tribal governments, and local agencies
assuming the role of cooperating agency. In this manner, the other
Federal, State, and local agencies can work to ensure that the ensuing
NEPA document will meet their needs for adoption and application to
their related decision. If
[[Page 10877]]
joint lead is dictated by other law, regulation, policy, or practice,
then one Federal agency shall be identified as the agency responsible
for filing the EIS.
E. Lead agency designations may be required by law in certain
circumstances.
2.5 Cooperating Agencies (40 CFR 1501.6)
A. The OEPC will assist Bureaus in determining cooperating agencies
and coordinate requests from non-Interior agencies.
B. Bureaus will inform the OEPC of any agreements to assume
cooperating agency status or any declinations pursuant to Section
1501.6(c).
C. Upon the request of the lead agency, any Federal agency with
jurisdiction by law shall, and any Federal agency with special
expertise may, be a cooperating agency. Any non-Federal agency (State,
tribal, or local) may be a cooperating agency by agreement when it has
jurisdiction by law (40 CFR 1508.15) or special expertise (40 CFR
1508.26) and meets the requirements of 40 CFR 1501.6. Bureaus will
consult with the Solicitor's Office in cases where such non-Federal
agencies are also applicants before the Department to determine
relative lead/cooperating agency responsibilities.\4\
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\4\ CEQ guidance to agencies dated July 28, 1999, and January
30, 2002, urges agencies to more actively solicit participation of
Federal, State, tribal, and local governments as cooperating
agencies.
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D. Bureaus and potential cooperating agencies are advised to
express in a letter and, if necessary, a memorandum of understanding
their respective roles, assignment of issues, schedules, and staff
commitments so that the NEPA process remains on track and within the
time schedule.
2.6 Scoping (40 CFR 1501.7)
A. The invitation requirement in section 1501.7(a)(1) may be
satisfied by including such an invitation in the NOI.
B. Scoping is a process which continues throughout the planning and
early stages of preparation of an EIS. Bureaus are encouraged through
scoping to engage State, local, and Tribal governments and the public
in the early identification of concerns, potential impacts, and
possible alternative actions. Scoping requires interdisciplinary
considerations. Scoping is an opportunity to bring agencies and
applicants together to lay the groundwork for setting time limits,
expediting reviews where possible, integrating other environmental
reviews, and identifying any major obstacles that could delay the
process.
C. Scoping should encourage the responsible official to integrate
analyses required by other environmental laws. Scoping should also be
used to integrate other planning activities for separate projects that
may have similar or cumulative impacts. Integrated analysis facilitates
the resolution of resource conflicts and minimizes redundancy.
D. Through scoping meetings, newsletters, or other communication
methods, it should be made clear that the lead agency is ultimately
responsible for the scope of an EIS and that suggestions obtained
during scoping (see B and C above) are considered to be advisory.
2.7 Time Limits (40 CFR 1501.8)
A. Time limits are an important consideration and, when used
diligently, can contribute greatly to a more efficient NEPA process.
Bureaus are encouraged to set time limits of their own and to respond
favorably to applicant requests for time limits and set them consistent
with the requirements of 40 CFR 1501.8. Bureaus should work with
cooperating agencies and agencies with which they must consult in
setting time limits and encourage their commitment in meeting the time
frames established.
B. When time limits are established, they should reflect the
availability of personnel and funds. Efficiency of the NEPA process is
dependent on the management capabilities of the lead bureau, which is
encouraged to assemble a sufficiently well qualified staff commensurate
with the type of project to be analyzed to ensure timely completion of
NEPA documents.
CHAPTER 2; APPENDIX 1
Departmental Categorical Exclusions
The following actions are CXs pursuant to 516 DM 2.3A(2).
However, environmental documents will be prepared for individual
actions within these CX if any of the extraordinary circumstances
listed in 516 DM 2, Appendix 2, apply.
1.1 Personnel actions and investigations and personnel services
contracts.
1.2 Internal organizational changes and facility and office
reductions and closings.
1.3 Routine financial transactions including such things as
salaries and expenses, procurement contracts (in accordance with
applicable procedures and Executive Orders for sustainable or green
procurement), guarantees, financial assistance, income transfers,
audits, fees, bonds, and royalties.
1.4 Departmental legal activities including, but not limited to,
such things as arrests, investigations, patents, claims, and legal
opinions. This does not include bringing judicial or administrative
civil or criminal enforcement actions which are outside the scope of
NEPA in accordance with 40 CFR 1508.18(a).
1.5 Nondestructive data collection, inventory (including field,
aerial, and satellite surveying and mapping), study, research, and
monitoring activities.
1.6 Routine and continuing government business, including such
things as supervision, administration, operations, maintenance,
renovations, and replacement activities having limited context and
intensity (e.g., limited size and magnitude or short-term effects).
1.7 Management, formulation, allocation, transfer, and
reprogramming of the Department's budget at all levels. (This does
not exclude the preparation of environmental documents for proposals
included in the budget when otherwise required.)
1.8 Legislative proposals of an administrative or technical
nature (including such things as changes in authorizations for
appropriations and minor boundary changes and land title
transactions) or having primarily economic, social, individual, or
institutional effects; and comments and reports on referrals of
legislative proposals.
1.9 Policies, directives, regulations, and guidelines that are
of an administrative, financial, legal, technical, or procedural
nature and whose environmental effects are too broad, speculative,
or conjectural to lend themselves to meaningful analysis and will
later be subject to the NEPA process, either collectively or case-
by-case.
1.10 Activities which are educational, informational, advisory,
or consultative to other agencies, public and private entities,
visitors, individuals, or the general public.
1.11 Hazardous fuels reduction activities using prescribed fire
not to exceed 4,500 acres, and mechanical methods for crushing,
piling, thinning, pruning, cutting, chipping, mulching, and mowing,
not to exceed 1,000 acres. Such activities: Shall be limited to
areas (1) in wildland-urban interface and (2) Condition Classes 2 or
3 in Fire Regime Groups I, II, or III, outside the wildland-urban
interface; Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire
Risks to Communities and the Environment 10-Year Comprehensive
Strategy Implementation Plan;'' Shall be conducted consistent with
agency and Departmental procedures and applicable land and resource
management plans; Shall not be conducted in wilderness areas or
impair the suitability of wilderness study areas for preservation as
wilderness; Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if
the primary purpose of the activity is hazardous fuels reduction.\5\
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\5\ Refer to the Environmental Statement Memoranda Series for
additional, required guidance.
---------------------------------------------------------------------------
1.12 Post-fire rehabilitation activities not to exceed 4,200
acres (such as tree planting, fence replacement, habitat
restoration, heritage site restoration, repair of roads and trails,
and repair of damage to minor facilities such as campgrounds) to
repair or improve
[[Page 10878]]
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities
damaged by fire. Such activities: Shall be conducted consistent with
agency and Departmental procedures and applicable land and resource
management plans; Shall not include the use of herbicides or
pesticides or the construction of new permanent roads or other new
permanent infrastructure; and Shall be completed within three years
following a wildland fire.\6\
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\6\ Ibid.
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CHAPTER 2; APPENDIX 2
Categorical Exclusions: Extraordinary Circumstances
Extraordinary circumstances exist for individual actions within
CXs which may:
2.1 Have significant impacts on public health or safety.
2.2 Have significant impacts on such natural resources and
unique geographic characteristics as historic or cultural resources;
park, recreation or refuge lands; wilderness areas; wild or scenic
rivers; national natural landmarks; sole or principal drinking water
aquifers; prime farmlands; wetlands (Executive Order 11990);
floodplains (Executive Order 11988); national monuments; migratory
birds; and other ecologically significant or critical areas.
2.3 Have highly controversial environmental effects or involve
unresolved conflicts concerning alternative uses of available
resources [NEPA section 102(2)(E)].
2.4 Have highly uncertain and potentially significant
environmental effects or involve unique or unknown environmental
risks.
2.5 Establish a precedent for future action or represent a
decision in principle about future actions with potentially
significant environmental effects.
2.6 Have a direct relationship to other actions with
individually insignificant but cumulatively significant
environmental effects.
2.7 Have significant impacts on properties listed, or eligible
for listing, on the National Register of Historic Places as
determined by either the bureau or office.
2.8 Have significant impacts on species listed, or proposed to
be listed, on the List of Endangered or Threatened Species, or have
significant impacts on designated Critical Habitat for these
species.
2.9 Violate a Federal law, or a State, local, or tribal law or
requirement imposed for the protection of the environment.
2.10 Have a disproportionately high and adverse effect on low
income or minority populations (Executive Order 12898).
2.11 Limit access to and ceremonial use of Indian sacred sites
on Federal lands by Indian religious practitioners or significantly
adversely affect the physical integrity of such sacred sites
(Executive Order 13007).
2.12 Contribute to the introduction, continued existence, or
spread of noxious weeds or non-native invasive species known to
occur in the area or actions that may promote the introduction,
growth, or expansion of the range of such species (Federal Noxious
Weed Control Act and Executive Order 13112).
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 3: Environmental Assessments.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 3
3.1 Purpose
This Chapter provides supplementary instructions for implementing
those portions of the CEQ Regulations pertaining to EAs.
3.2 When To Prepare (40 CFR 1501.3)
A. An EA will be prepared for all actions, except those covered by
a categorical exclusion, those covered sufficiently by an earlier
environmental document, or those actions for which a decision has
already been made to prepare an EIS. The purpose of an EA is to allow
the responsible official to determine whether to prepare an EIS or a
FONSI.
B. In addition, an EA may be prepared on any action at any time in
order to assist in planning and decision making, to aid an agency's
compliance with NEPA when no EIS is necessary, or to facilitate EIS
preparation.
3.3 Public Involvement
A. The public must be provided notice of the availability of EAs
(40 CFR 1506.6).
B. Where appropriate, bureaus and offices, when conducting the EA
process, shall provide the opportunity for public participation and
shall consider the public comments on the pending plan or program.
C. The scoping process may be applied to an EA (40 CFR 1501.7).
3.4 Content
A. At a minimum, an EA will include brief discussions of the
proposal, the need for the proposal, alternatives [as required by
section 102(2)(E) of NEPA], the environmental impacts of the proposed
action and such alternatives, and a listing of agencies and persons
consulted [1508.9(b)].
B. In addition, an EA may describe a broader range of alternatives
and proposed mitigation measures to facilitate planning and decision
making.
C. The level of detail and depth of impact analysis should normally
be limited to the minimum needed to determine whether there would be
significant environmental effects.
D. An EA will contain objective analyses that support its
environmental impact conclusions. It will not conclude whether an EIS
will be prepared. This conclusion will be made upon review of the EA by
the responsible bureau official and documented in either a NOI or a
FONSI.
E. Previous NEPA analyses should be used in a tiered analysis or
transferred and used in a subsequent analysis to enhance the content of
an EA whenever possible.
3.5 Format
A. An EA may be prepared in any format useful to facilitate
planning, decision making, and appropriate public participation.
B. An EA may be combined with any other planning or decision making
document; however, that portion which analyzes the environmental
impacts of the proposal and alternatives will be clearly and separately
identified and not spread throughout or interwoven into other sections
of the document.
3.6 Adoption
A. An EA prepared for a proposal before the Department by another
agency, entity, or person, including an applicant, may be adopted if,
upon independent evaluation by the responsible official, it is found to
comply with this Chapter and relevant provisions of the CEQ
Regulations.
B. When appropriate and efficient, a responsible official may
augment such an EA when it is essentially, but not entirely, in
compliance, in order to make it so.
C. If such an EA is adopted or augmented, responsible officials
must prepare their own NOI or FONSI that acknowledges the origin of the
EA and takes full responsibility for its scope and content.
D. Adoption or augmentation of an EA shall receive the same public
participation that the EA would have received if it had originated with
the adopting or augmenting bureau or office.
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 4: Environmental Impact Statements.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 4
4.1 Purpose
This chapter provides supplementary instructions for implementing
those
[[Page 10879]]
portions of the CEQ regulations pertaining to EIS.
4.2 Statutory Requirements (40 CFR 1502.3)
NEPA requires that an EIS be prepared by the responsible Federal
official. This official is normally the lowest-level official who has
overall responsibility for formulating, reviewing, or proposing an
action or, alternatively, has been delegated the authority or
responsibility to develop, approve, or adopt a proposal or action.
Preparation at this level will ensure that the NEPA process will be
incorporated into the planning process and that the EIS will accompany
the proposal through existing review processes.
4.3 Timing (40 CFR 1502.5)
A. For such actions as broad programmatic decisions, rulemakings,
or resource management plans, an EIS should be commenced whenever a
proposed action has been defined. These types of actions can be
inherently vague and difficult to analyze until the proposed action is
defined. At that point, concurrent drafting of the proposal and its
accompanying EIS should be commenced.
B. The feasibility analysis (go/no-go) stage, at which time an EIS
is to be prepared for proposed projects undertaken by DOI, is to be
interpreted as the stage prior to the first point of major commitment
to the proposal. For example, this would normally be at the
authorization stage for proposals requiring Congressional
authorization; the location or corridor stage for transportation,
transmission, and communication projects; and the leasing stage for
offshore mineral resources proposals [40 CFR 1502.5(a)].
C. For situations involving applications to DOI or the bureaus, an
EIS need not be commenced until an application is essentially complete;
i.e., any required environmental information is submitted and any
required advance funding is paid by the applicant [40 CFR 1502.5(b)].
Officials shall also inform applicants of any responsibility they will
bear for funding environmental analyses associated with their
proposals.
4.4 Page Limits (40 CFR 1502.7)
Bureaus will ensure that the length of EISs is no greater than
necessary to comply with NEPA, the CEQ regulations, and this Chapter.
4.5 Supplemental Statements (40 CFR 1502.9)
A. Supplements are required if an agency makes substantial changes
in the proposed action relevant to environmental concerns or there are
significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.
B. A bureau and/or the appropriate program Assistant Secretary will
consult with the OEPC and the Office of the Solicitor prior to
proposing to CEQ to prepare a supplemental statement using alternative
arrangements such as issuing a final supplement without preparing an
intervening draft.
C. If, after a decision has been made based on a final EIS, a
described proposal is further defined or modified and if its changed
effects are not significant and still within the scope of the earlier
EIS, an EA, and a FONSI may be prepared for subsequent decisions rather
than a supplement.
4.6 Format (40 CFR 1502.10)
A. Proposed departures from the standard format described in the
CEQ regulations and this Chapter must be approved by the OEPC.
B. The section listing the preparers of the EIS will also include
other sources of information, including a bibliography or list of cited
references, when appropriate.
C. The section listing the distribution of the EIS will also fully
describe the consultation and public involvement processes used in
planning the proposal and in preparing the EIS, if this information is
not discussed elsewhere in the document. The section will also describe
the level to which the public contributed usable data for the document.
D. If CEQ's standard format is not used or if the EIS is combined
with another planning or decision making document, the section which
analyzes and compares the environmental consequences of the proposal
and its alternatives will be clearly and separately identified and not
interwoven into other portions of or spread throughout the document.
4.7 Cover Sheet (40 CFR 1502.11)
The cover sheet will also indicate whether the EIS is intended to
serve any other environmental review or consultation requirements
pursuant to section 1502.25. The cover sheet will also identify
cooperating agencies, the location of the action, and whether the
analysis is programmatic in nature.
4.8 Summary (40 CFR 1502.12)
The emphasis in the summary should be on those considerations,
controversies, and issues that significantly affect the quality of the
human environment.
4.9 Purpose and Need (40 CFR 1502.13)
This section shall present the purpose of and need for the agency
action. The purpose and need shall be described in sufficient detail to
aid in the development of an appropriate range of alternatives. Care
should be taken to ensure an objective presentation and not a
justification.
4.10 Alternatives Including the Proposed Action (40 CFR 1502.14)
A. The following terms are commonly used in NEPA compliance
activities and are described below for clarification.
(1) Range of Alternatives--This term means all reasonable
alternatives that will be rigorously explored and objectively evaluated
as well as other alternatives that are eliminated from detailed study
after providing reasons for their elimination.
(2) Reasonable Alternatives--This term means alternatives that are
technically and economically practical or feasible and that meet the
purpose and need of the proposed action.
(3) Proposed Action--This term means the agency activity to be
undertaken. It also means a non-Federal entity's planned activity which
falls under a Federal agency's authority to issue permits, licenses,
grants, rights-of-way, or other common Federal approvals, funding, or
regulatory instruments. The proposed action is generally the earliest
known description of the action to be taken. The proposed action is not
necessarily, but may become, during the NEPA process, a preferred
alternative or an environmentally preferred alternative. The proposed
action must be fully and clearly described in order to proceed with
NEPA analysis.
(4) Preferred Alternative--This term means the alternative which
the agency believes would fulfill its statutory mission and
responsibilities, while giving consideration to economic,
environmental, technical, and other factors. It may or may not be the
same as the agency's or the non-Federal entity's proposed action.
(5) Environmentally Preferred Alternative--This term means the
alternative that will best promote the national environmental policy as
expressed in NEPA's Section 101 and can be characterized as causing the
least damage to the biological and physical environment and best
protect, preserve, and enhance the nation's historic, cultural, and
natural resources.
[[Page 10880]]
(6) No Action Alternative--This term has two interpretations. First
``no action'' means ``no change'' from a current management direction
or level of management intensity. Second ``no action'' means ``no
project'' in cases where a new project is proposed for construction.
Regardless of the interpretation, the ``no action'' alternative is
required to be analyzed in an EIS.
B. As a general rule, the following guidance will apply:
(1) For internally initiated proposals, i.e., for those cases where
the Department conducts or controls the planning process, both the
draft and final EIS shall identify the bureau's proposed action.
(2) For externally initiated proposals, i.e., for those cases where
the Department is reacting to an application or similar request,
(a) the draft and final EIS shall identify the applicant's proposed
action, and
(b) the draft EIS should also identify the bureau's preferred
alternative, if one or more exists, and the final EIS should identify
the bureau's preferred alternative unless another law prohibits the
expression of a preference.
(3) Proposed departures from this guidance must be approved by the
OEPC and the Office of the Solicitor.
C. Certain mitigation measures can be clearly integral to the
proposed action and its alternatives and should be incorporated into
and analyzed as a part of the proposal and appropriate alternatives.
When this is done, these measures are no longer considered
independently with other mitigation. Where appropriate, major
mitigation measures may be identified and analyzed as separate
alternatives where the environmental consequences are distinct and
significant enough to warrant separate evaluation.
D. In practicing consensus-based management during the development
of an EIS, bureaus should give full consideration to any reasonable
alternative(s) put forth by participating interested parties. While
there can be no guarantee that a community's proposed alternative will
be taken as the agency proposed action, bureaus must be able to show
that a community's work is reflected in the evaluation of the proposed
action and the final decision. To be considered, the community's
alternative must be fully consistent with NEPA, the CEQ Regulations,
this Departmental Manual part, all applicable Departmental and bureau
written policies and guidance.
4.11 Appendix (40 CFR 1502.18)
If an EIS is intended to serve other environmental review or
consultation requirements pursuant to section 1502.25, any more
detailed information needed to comply with these requirements may be
included as an appendix.
4.12 Tiering (40 CFR 1502.20)
A. Tiering is a tool to prevent repetitive discussions and to focus
on issues currently before the decision maker. In this process, earlier
documents from which later documents are tiered, must be reliable and
kept current. Tiered documents must make a finding that conditions
described in earlier documents are still in effect or must revise any
analyses that are out of date.
B. In some cases, transferring or combining information from
previous NEPA documents can be done to reduce repetitive discussions
and duplication of effort (see 4.20, below).
C. Bureaus must maintain access to such things as: sources of
similar information, examples of tiered and transferred analyses, a set
of procedural steps to make the most of tiered and transferred
analyses, knowledge of when to use previous material, and how to used
tiered and transferred analyses without sacrificing references to
original sources.
4.13 Incorporation by Reference (40 CFR 1502.21)
Citations of specific topics will include the pertinent page
numbers. All literature references will be listed in the bibliography.
4.14 Incomplete or Unavailable Information (40 CFR 1502.22)
The references to overall costs in this section are not limited to
market costs, but include other costs to society such as social costs
due to delay.
4.15 Methodology and Scientific Accuracy (40 CFR 1502.24)
Conclusions about environmental effects will be preceded by an
analysis that supports that conclusion unless explicit reference by
footnote is made to other supporting documentation that is readily
available to the public. Bureaus will also follow Departmental
procedures for information quality as required under Section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year
2001.
4.16 Adaptive Management
Adaptive management is a system of management practices based on
clearly identified outcomes, monitoring to determine if management
actions are meeting outcomes, and, if not, facilitating management
changes that will best ensure that outcomes are met or to re-evaluate
the outcomes. Adaptive management recognizes that knowledge about
natural resource systems is sometimes uncertain and is the preferred
method of management in these cases. Bureaus are encouraged to build
adaptive management practice into their proposed actions and NEPA
compliance activities and train personnel in this important
environmental concept.
4.17 Environmental Review and Consultation Requirements (40 CFR
1502.25)
A. A list of related environmental review and consultation
requirements is available from the OEPC (ESM94-14).
B. If the EIS is intended to serve as the vehicle to fully or
partially comply with any of these requirements, the associated
analyses, studies, or surveys will be identified as such and discussed
in the text of the EIS and the cover sheet will so indicate. Any
supporting analyses or reports will be referenced or included as an
appendix and shall be sent to reviewing agencies as appropriate in
accordance with applicable regulations or procedures.
C. The draft EIS should list all Federal permits, licenses, or
approvals that must be obtained to implement the proposal. To the
fullest extent possible, the environmental analyses for these related
permits, licenses, and approvals shall be integrated and performed
concurrently. Although all approvals do not need to be in place to
complete the NEPA analysis, they do need to be in place before
implementing the proposed action. Bureaus shall ensure that they have a
process in place to make integrated analyses a standard part of their
NEPA compliance efforts.
4.18 Inviting Comments (40 CFR 1503.1)
A. Comments from State agencies will be requested through
procedures established by the Governor pursuant to Executive Order
12372, and may be requested from local agencies through these
procedures to the extent that they include the affected local
jurisdictions.
B. When the proposed action may affect the environment of Indian
trust or restricted land or other Indian trust resources, trust assets,
or tribal health and safety, comments will be requested from the Indian
tribal government unless the Indian tribal government has designated an
alternate review process.
C. The comments of other Departmental bureaus and offices must
[[Page 10881]]
also be requested. In order to do this, the preparing bureau must
furnish copies of the environmental document to the other bureaus in
quantities sufficient to allow simultaneous review. Bureaus may be
removed from this circulation following consultation with, and
concurrence of, a bureau.
4.19 Response to Comments (40 CFR 1503.4)
A. Preparation of a final EIS need not be delayed in those cases
where a Federal agency, external to DOI and from which comments are
required to be obtained [40 CFR 1503.1(a)(1)], does not comment within
the prescribed time period.
B. Informal attempts will be made to determine the status of any
late comments and a reasonable attempt should be made to include the
comments and a response in the final EIS. As noted in 516 DM 2.2D, the
late introduction of new issues and alternatives is to be avoided and
they will be considered only to the extent practicable.
C. For those EISs requiring the approval of the AS/PMB pursuant to
516 DM 6.3, bureaus will consult with the OEPC when they propose to
prepare an abbreviated final EIS [40 CFR 1503.4(c)].
4.20 Elimination of Duplication With State and Local Procedures (40 CFR
1506.2)
Bureaus will incorporate in their appropriate program regulations
provisions for the preparation of an EIS by a State agency to the
extent authorized in Section 102(2)(D) of NEPA. Eligible programs are
listed in Appendix 1 to this Chapter.
4.21 Combining Documents (40 CFR 1506.4)
See 516 DM 4.6D.
4.22 Departmental Responsibility (40 CFR 1506.5)
A. Bureaus are responsible for preparation of their environmental
documents and independent evaluation of environmental documents
prepared by others for a bureau.
B. A contractor may be used to prepare any environmental document
in accordance with the standards of 40 CFR 1506.5(c).
4.23 Public Involvement (40 CFR 1506.6)
See 516 DM 1.2, 1.3, 1.6, and 301 DM 2.
4.24 Further Guidance (40 CFR 1506.7)
The OEPC may provide further guidance concerning NEPA pursuant to
its organizational responsibilities (112 DM 4) and through supplemental
directives (381 DM 4.5B). Current guidance is located in the
Environmental Memoranda Series periodically updated by OEPC and
available on the OEPC Web site at http://www.doi.gov/oepc.
4.25 Proposals for Legislation (40 CFR 1506.8)
The Office of Congressional and Legislative Affairs, in
consultation with the OEPC, shall:
A. Identify in the annual submittal to OMB of the Department's
proposed legislative program any requirements for, and the status of,
any environmental documents.
B. When required, ensure that a legislative EIS is included as a
part of the formal transmittal of a legislative proposal to the
Congress.
4.26 Time Periods (40 CFR 1506.10)
A. The minimum review period for a draft EIS will be forty-five
(45) days from the date of publication by the Environmental Protection
Agency (EPA) of the notice of availability.
B. For those ElSs requiring the approval of the AS/PMB pursuant to
516 DM 6.3, the OEPC will be responsible for consulting with the EPA
and/or CEQ about any proposed reductions in time periods or any
extensions of time periods proposed by the bureaus.
4.27 Emergencies (40 CFR 1506.11)
See subpart 5.8.
CHAPTER 4, APPENDIX 1
Programs of Grants to States and/or Tribes in Which Agencies Having
Statewide Jurisdiction May Prepare EISs
1.1 Fish and Wildlife Service
A. Anadromous Fish Conservation (11.405) \7\.
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\7\ Citations in parentheses refer to the Catalog of Federal
Domestic Assistance. Citations are current as of 2003. The catalog
may be viewed at http://cfda.gov/.
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B. Fish Restoration (15.605).
C. Wildlife Restoration (15.611).
D. Endangered Species Conservation (15.615).
1.2 National Park Service
A. Historic Preservation Grants-in-Aid (15.904).
B. Outdoor Recreation-Acquisition Development and Planning
(15.916).
1.3 Office of Surface Mining
A. Regulation of Surface Coal Mining and Surface Effects of
Underground Coal Mining (15.250).
B. Abandoned Mine Land Reclamation Program (15.252).
1.4 Office of Insular Affairs
A. Economic and Political Development of the Territories and the
Trust Territory of the Pacific Islands (15.875).
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 5: Relationship to Decision Making.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 5
5.1 Purpose
This Chapter provides supplementary instructions for implementing
those portions of the CEQ Regulations pertaining to decision making.
5.2 Predecision Referrals to CEQ (40 CFR 1504.3)
A. Upon receipt of advice that another Federal agency intends to
refer a Departmental matter to CEQ, the lead bureau will immediately
meet with that Federal agency to attempt to resolve the issues raised
and expeditiously notify its Assistant Secretary, the Solicitor, and
the OEPC.
B. Upon any referral of a Departmental matter to CEQ by another
Federal agency, the OEPC will be responsible for coordinating the
Department's role with CEQ. The lead bureau will be responsible for
developing and presenting the Department's position at CEQ including
preparation of briefing papers and visual aids.
5.3 Decision Making Procedures (40 CFR 1505.1)
A. Procedures for decisions by the Secretary/Deputy Secretary are
specified in 301 DM 1. Assistant Secretaries should follow a similar
process when an environmental document accompanies a proposal for their
decision.
B. Bureaus will incorporate in their decision making procedures and
NEPA handbooks provisions for consideration of environmental factors
and relevant environmental documents. The major decision points for
principal programs likely to have significant environmental effects
will be identified in the bureau chapters on ``Managing the NEPA
Process'' beginning with Chapter 8 of this Part.
C. Relevant environmental documents, including supplements, will be
included as part of the record in formal rulemaking or adjudicatory
proceedings.
[[Page 10882]]
D. Relevant environmental documents, comments, and responses will
accompany proposals through existing review processes so that
Departmental officials use them in making decisions.
E. The decision maker will consider the environmental impacts of
the alternatives described in any relevant environmental document and
the range of these alternatives must encompass the alternatives
considered by the decision maker.
F. To the extent practicable, the decision maker will consider
other substantive and legal obligations beyond the immediate context of
the proposed action.
5.4 Record of Decision (40 CFR 1505.2)
A. Any decision documents prepared pursuant to 301 DM 1 for
proposals involving an EIS shall incorporate all appropriate provisions
of section 1505.2(b) and (c).
B. If a decision document incorporating these provisions is made
available to the public following a decision, it will serve the purpose
of a record of decision.
5.5 Implementing the Decision (40 CFR 1505.3)
The terms ``monitoring'' and ``conditions'' will be interpreted as
being related to factors affecting the quality of the natural and human
environment.
5.6 Limitations on Actions (40 CFR 1506.1)
A bureau will immediately notify its Assistant Secretary, the
Solicitor, and the OEPC of any situations described in section
1506.1(b).
5.7 Timing of Actions (40 CFR 1506.10)
For those EISs requiring the approval of the AS/PMB pursuant to 516
DM 6.3, the responsible official will consult with the OEPC before
making any request for reducing the time period before a decision or
action.
5.8 Emergencies (40 CFR 1506.11)
In the event of an emergency situation, a bureau will immediately
take any necessary action to prevent or reduce risks to public health
or safety or important resources. If the agency action has significant
environmental impacts, a bureau will immediately consult with its
Assistant Secretary, the Solicitor, OEPC, and (together with OEPC) CEQ
about compliance with NEPA. Upon learning of the emergency situation,
the OEPC will immediately notify CEQ. During follow-up activities OEPC
and the bureau will jointly be responsible for consulting with CEQ.
Paragraph 1506.11 applies only to the emergency and not to any related
recovery actions after the emergency has passed. If the agency action
does not have significant environmental impacts, a bureau will consult
with OPEC to consider any appropriate action.
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 6: Managing the NEPA Process.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 6
6.1 Purpose
This Chapter provides supplementary instructions for implementing
those provisions of the CEQ Regulations pertaining to procedures for
implementing and managing the NEPA process.
6.2 Organization for Environmental Quality
A. Office of Environmental Policy and Compliance. The Director,
OEPC, reporting to the AS/PMB, is responsible for providing advice and
assistance to the Department on matters pertaining to environmental
quality and for overseeing and coordinating the Department's compliance
with NEPA. (See also 112 DM 4.)
B. Bureaus and Offices. Heads of bureaus and offices will designate
organizational elements or individuals, as appropriate, at headquarters
and regional levels to be responsible for overseeing matters pertaining
to the environmental effects of the bureau's plans and programs. The
individuals assigned these responsibilities should have management
experience or potential, understand the bureau's planning and decision
making processes, and be well trained in environmental matters,
including the Department's policies and procedures so that their advice
has significance in the bureau's planning and decisions. These
organizational elements will be identified in chapters 8-15, which
contain all bureau NEPA requirements.
6.3 Approval of EISs
A. A program Assistant Secretary is authorized to approve an EIS in
those cases where the responsibility for the decision for which the EIS
has been prepared rests with the Assistant Secretary or below. The
Assistant Secretary may further assign the authority to approve the EIS
if he or she chooses. The AS/PMB will make certain that each program
Assistant Secretary has adequate safeguards to ensure that the EISs
comply with NEPA, the CEQ Regulations, and the Departmental Manual.
B. The AS/PMB is authorized to approve an EIS in those cases where
the decision for which the EIS has been prepared will occur at a level
in the Department above an individual program Assistant Secretary.
6.4 List of Specific Compliance Responsibilities
A. Bureaus and offices shall:
(1) Prepare NEPA handbooks providing guidance on how to implement
NEPA in principal program areas.
(2) Prepare program regulations or directives for applicants.
(3) Propose and apply categorical exclusions.
(4) Prepare and approve EAs.
(5) Decide whether to prepare an EIS.
(6) Prepare and publish NOIs and FONSIs.
(7) Prepare and, when assigned, approve EISs.
B. Assistant Secretaries shall:
(1) Approve bureau and offices handbooks.
(2) Approve regulations or directives for applicants.
(3) Approve proposed categorical exclusions.
(4) Approve EISs pursuant to 516 DM 6.3.
C. The AS/PMB shall:
(1) Concur with regulations or directives for applicants.
(2) Concur with proposed categorical exclusions.
(3) Approve EISs pursuant to 516 DM 6.3.
6.5 Bureau Requirements
A. Requirements specific to bureaus appear as separate chapters
beginning with chapter 8 of this part and include the following:
(1) Identification of officials and organizational elements
responsible for NEPA compliance.
(2) List of program regulations or directives which provide
information to applicants.
(3) Identification of major decision points in principal programs
for which an EIS is normally prepared.
(4) List of projects or groups of projects for which an EA is
normally prepared.
(5) List of categorical exclusions.
B. Bureau requirements are found in the following chapters for the
current bureaus:
[[Page 10883]]
(1) Fish and Wildlife Service (chapter 8; formerly appendix 1).
(2) Geological Survey (chapter 9; formerly appendix 2).
(3) Bureau of Indian Affairs (chapter 10; formerly appendix 4).
(4) Bureau of Land Management (chapter 11; formerly appendix 5).
(5) National Park Service (chapter 12; formerly appendix 7).
(6) Office of Surface Mining (chapter 13; formerly appendix 8).
(7) Bureau of Reclamation (chapter 14; formerly appendix 9).
(8) Minerals Management Service (chapter 15; formerly appendix 10).
C. The Office of the Secretary and other Departmental Offices do
not have separate chapters but must comply with this Part and will
consult with the OEPC about compliance activities.
6.6 Information About the NEPA Process
The OEPC will periodically publish a Departmental list of bureau
contacts where information about the NEPA process and the status of
EISs may be obtained. This list will be available on OEPC's Web site at
http://www.doi.gov/oepc.
Department of the Interior--Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 7: Review of Environmental Impact Statements and Project
Proposals Prepared by Other Federal Agencies.
Originating Office: Office of Environmental Policy and Compliance.
516 DM 7
7.1 Purpose
A. These procedures implement the policy and directives of the
National Environmental Policy Act of 1969 (Pub. L. 91-190, 83 Stat.
852, January 1, 1970, NEPA); Section 2(f) of Executive Order No. 11514
(March 5, 1970); the CEQ Regulations (43 FR 55990, November 28, 1978;
CEQ); Bulletin No. 72-6 of the Office of Management and Budget
(September 14, 1971); and provide guidance to bureaus and offices of
the Department in the review of EISs prepared by and for other Federal
agencies.
B. In accordance with 112 DM 4.2F, these procedures further govern
the Department's environmental review of non-Interior proposals such as
regulations, applications, plans, reports, and other environmental
documents which affect the interests of the Department. Such proposals
are prepared, circulated, and reviewed under a wide variety of statutes
and regulations. These procedures ensure that the Department responds
to these review requests with coordinated comments and recommendations
under Interior's various authorities.
7.2 Policy
The Department considers it a priority to provide competent and
timely review comments on EISs and other environmental or project
review documents prepared by other Federal agencies for their major
actions which significantly affect the quality of the human
environment. All such documents are hereinafter referred to as
``environmental review documents.'' The term ``environmental review
document'' as used in this chapter is separate from and broader than
the term ``environmental document'' found in 40 CFR 1508.10 of the CEQ
Regulations. These reviews are predicated on the Department's
jurisdiction by law or special expertise with respect to the
environmental impact involved and shall provide constructive comments
to other Federal agencies to assist them in meeting their environmental
responsibilities.
7.3 Responsibilities
A. The AS/PMB: Shall be the Department's contact point for the
receipt of requests for reviews of environmental review documents
prepared by or for other Federal agencies. This authority shall be
carried out through the Director, OEPC.
B. The Director, Office of Environmental Policy and Compliance:
(1) Shall determine whether such review requests are to be answered
by a Secretarial Officer, the Director, OEPC, or by a Regional
Environmental Officer, and determine which bureaus and/or offices shall
perform such reviews;
(2) Shall prepare, or where appropriate, shall designate a lead
bureau responsible for preparing the Department's review comments. The
lead bureau may be a bureau, Secretarial office, other Departmental
office, or task force and shall be that organizational entity with the
most significant jurisdiction or environmental expertise in regard to
the requested review;
(3) Shall establish review schedules and target dates for
responding to review requests and monitor their compliance;
(4) Shall review, sign, and transmit the Department's review
comments to the requesting agency;
(5) Shall consult with the requesting agency on the Department's
review comments on an ``as needed'' basis to ensure resolution of the
Department's concerns; and
(6) Shall consult with the Office of Congressional and Legislative
Affairs and the Solicitor when environmental reviews pertain to
legislative or legal matters, respectively.
C. The Office of Congressional and Legislative Affairs: Shall
ensure that requests for reviews of environmental review documents
prepared by other Federal agencies that accompany or pertain to
legislative proposals are immediately referred to the AS/PMB.
D. Regional Environmental Officers: When designated by the
Director, OEPC, shall review, sign, and transmit the Department's
review comments to the requesting agency.
E. Assistant Secretaries and Heads of Bureaus and Offices:
(1) Shall designate officials and organizational elements
responsible for the coordination and conduct of environmental reviews
and report this information to the Director, OEPC;
(2) Shall provide the Director, OEPC, with appropriate information
and material concerning their delegated jurisdiction and special
expertise in order to assist in assigning review responsibilities;
(3) Shall conduct reviews based upon their areas of jurisdiction or
special expertise and provide comments to the designated lead bureau or
office assigned responsibilities for preparing Departmental comments;
(4) When designated lead bureau by the Director, OEPC, shall
prepare and forward the Department's review comments as instructed;
(5) Shall ensure that review schedules for discharging assigned
responsibilities are met and promptly inform other concerned offices if
established target dates cannot be met and when they will be met;
(6) Shall provide a single, unified bureau response to the lead
bureau, as directed;
(7) Shall ensure that the policies of 516 DM 7.2 regarding
competency and timeliness are carried out; and
(8) Shall provide the necessary authority to those designated in
E.1 above to carry out all the requirements of 516 DM 7.
7.4 Types of Reviews
A. Descriptions of Proposed Actions
(1) Federal agencies and applicants for Federal assistance may
circulate descriptions of proposed actions for the purpose of
soliciting information concerning environmental impacts in order to
determine whether to prepare EISs. Such descriptions of proposed
actions are not substitutes for EISs.
[[Page 10884]]
(2) Requests for reviews of descriptions of proposed actions are
not required to be processed through the OEPC. Review comments may be
handled independently by bureaus and offices, with the Regional
Environmental Officer or Director, OEPC, being advised of significant
or highly controversial issues. Review comments are for the purpose of
providing informal technical assistance to the requesting agency and
should state that they do not represent the views and comments of the
Department.
B. Environmental Assessments
(1) EAs are not substitutes for EISs. These assessments or reports
may be prepared by Federal agencies, their consultants, or applicants
for Federal assistance. They are prepared either to provide information
in order to make a finding that there are no significant impacts or
that an EIS should be prepared. If they are separately circulated, it
is generally for the purpose of soliciting additional information
concerning environmental impacts.
(2) Requests for reviews of EAs are not required to be processed
through the OEPC. Review comments may be handled independently by
bureaus and offices, with the Regional Environmental Officer or
Director, OEPC, being advised of significant or highly controversial
issues. If a bureau requests and OEPC agrees, a control number may be
assigned with appropriate instructions. Review comments are for the
purpose of providing informal technical assistance to the requesting
agency and should state that they do not represent the views and
comments of the Department.
C. Findings of No Significant Impact
(1) Findings of No Significant Impact are prepared by Federal
agencies to document that there is no need to prepare an EIS. A FONSI
is a statement for the record by the proponent Federal agency that it
has reviewed the environmental impact of its proposed action (in an
EA), that it determines that the action will not significantly affect
the quality of the human environment, and that an EIS is not required.
Public notice of the availability of such findings shall be announced;
however, FONSIs are not normally circulated.
(2) Findings of No Significant Impact are not required to be
processed through the OEPC. Review comments may be handled
independently by bureaus and offices, with the Regional Environmental
Officer or Director, OEPC, being advised of significant or highly
controversial issues.
D. Notices of Intent and Scoping Requests
(1) Notices of intent and scoping requests mark the beginning of
the formal review process. Notices of intent are published in the
Federal Register and announce that an agency plans to prepare an
environmental review document under NEPA. Often the NOI and notice of
scoping meetings and/or requests are combined into one Federal Register
notice.
(2) Reviews of notices of intent and scoping requests are processed
through the OEPC with instructions to bureaus to comment directly to
the requesting agency. Review comments are for the purpose of providing
informal technical assistance to the requesting agency and should state
that they do not represent the views and comments of the Department.
E. Preliminary, Proposed, or Working Draft Environmental Impact
Statements
(1) Preliminary, proposed, or working draft EISs are sometimes
prepared and circulated by Federal agencies and applicants for Federal
assistance for consultative purposes.
(2) Requests for reviews of these types of draft EISs are not
required to be processed through the OEPC. Review comments may be
handled independently by bureaus and offices with the Regional
Environmental Officer or Director, OEPC, being advised of significant
or highly controversial issues. Review comments are for the purpose of
providing informal technical assistance to the requesting agency and
should state that they do not represent the views and comments of the
Department.
F. Draft Environmental Impact Statements
(1) Draft EISs are prepared by Federal agencies under the
provisions of Section 102(2)(C) of NEPA and provisions of the CEQ
Regulations. They are filed with the EPA and officially circulated to
other Federal, State, and local agencies [see 40 CFR 1503.1(a)] for
review based upon their jurisdiction by law or special expertise with
respect to the agency mission, related program experience, or
environmental impact of the proposed action or alternatives to the
action [see 7.5A(1)].
(2) All requests from other Federal agencies for review of draft
EISs shall be made through the Director, OEPC. Review comments shall be
handled in accordance with the provisions of this chapter and guidance
memoranda may be issued and updated by the OEPC.
G. Final Environmental Impact Statements
(1) Final EISs are prepared by Federal agencies following receipt
and consideration of review comments. They are filed with the EPA and
are circulated to the public for an administrative waiting period of
thirty days and sometimes for comment.
(2) The Director, OEPC, shall review final EISs to determine
whether they reflect adequate consideration of the Department's
comments. Bureaus and offices shall not comment independently on final
EISs, but shall inform the Director, OEPC, of their views. Any review
comments shall be handled in accordance with the instructions of the
OEPC.
H. License and Permit Applications
(1) The Department receives draft and final environmental review
documents associated with applications for other Federal licenses and
permits. This activity largely involves the regulatory program of the
Corps of Engineers and the hydroelectric and natural gas pipeline
licensing programs of the Federal Energy Regulatory Commission.
(2) Environmental review of applications is generally handled in
the same manner as for draft and final EISs. Additional review guidance
may be made available as necessary to efficiently manage this activity.
Bureau reviewers should review information on the OEPC Web site and
consult with the OEPC for the most current review guidance.
(3) While review of NEPA compliance documents associated with Corps
of Engineers permit applications is managed in accordance with this
Chapter, review of Corps of Engineers permit applications is managed in
accordance with 503 DM 1. Reviewers are referred to that Manual Part
and to 7.5C.(3) below for the processing of concurrent reviews.
I. Project Plans and Reports Without Associated Environmental Review
Documents
(1) The Department receives draft and final project plans and
reports under various authorities which do not have environmental
review documents circulated with them. This may be because NEPA
compliance has been completed, will be completed on a slightly
different schedule, NEPA does not apply, or other reasons.
(2) Environmental review of these documents is handled in the same
manner as for draft and final EISs. Additional review guidance may be
made available as necessary to
[[Page 10885]]
efficiently manage this activity. Bureau reviewers should review
information on the OEPC Web site and consult with the OEPC for the most
current review guidance.
J. Federal Regulations
(1) The Department circulates and controls the review of advance
notices of proposed rulemaking, proposed rulemaking, and final
rulemaking which are environmental in nature, may impact the quality of
the human environment, and may impact the Department's natural
resources and programs.
(2) Environmental review of these documents is handled in the same
manner as for draft and final EISs. Additional review guidance may be
made available as necessary to efficiently manage this activity. Bureau
reviewers should review information on the OEPC Web site and consult
with the OEPC for the most current review guidance.
K. Documents Prepared Pursuant to Other Environmental Statutes
(1) The Department receives draft and final project plans prepared
pursuant to other environmental statutes [e.g., National Historic
Preservation Act (NHPA), Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA); Resource Conservation and
Recovery Act (RCRA), and the Oil Pollution Act (OPA)], which may not
have environmental review documents circulated with them.
(2) Environmental review of these documents is handled consistently
with the policies and provisions of this part, and in accordance with
further guidance from the Director, OEPC. Additional review guidance
may be made available as necessary to efficiently manage this activity.
Bureau reviewers should review information on the OEPC Web site and
consult with the OEPC for the most current review guidance.
L. Section 4(f) Documents
(1) Under Section 4(f) of the Department of Transportation Act, the
Secretary of Transportation may approve a transportation program or
project requiring the use of publicly owned land of a public park,
recreation area, or wildlife and waterfowl refuge of national, State or
local significance, or land of an historic site of national, State, or
local significance (as determined by the Federal, State, or local
officials having jurisdiction over the park, area, refuge, or site)
only if there is no prudent and feasible alternative to using that land
and the program or project includes all possible planning to minimize
harm to the park, recreation area, wildlife and waterfowl refuge, or
historic site resulting from the use.
(2) Environmental review of Section 4(f) documents is handled in
the same manner as for draft and final EISs. Additional review guidance
may be made available as necessary to efficiently manage this activity.
Bureau reviewers should review information on the OEPC Web site and
consult with the OEPC for the most current review guidance.
7.5 Content of Comments on Environmental Review Documents
A. Departmental Comments
(1) Departmental comments on environmental review documents
prepared by other Federal agencies shall be based upon the Department's
jurisdiction by law or special expertise with respect to the agency
mission, related program experience, or environmental impact of the
proposed action or alternatives to the action. The adequacy of the
document in regard to applicable statutes is the responsibility of the
agency that prepared the document and any comments on its adequacy
shall be limited to the Department's jurisdiction or environmental
expertise.
(2) Reviews shall be conducted in sufficient detail to ensure that
both potentially beneficial and adverse environmental effects of the
proposed action and alternatives, including cumulative and secondary
effects, are adequately identified. Wherever possible, and within the
Department's competence and resources, other agencies will be advised
on ways to avoid or minimize adverse impacts of the proposed action and
alternatives, and on alternatives to the proposed action that may have
been overlooked or inadequately treated.
(3) Review comments should not capsulate or restate the
environmental review document, but should provide clear, concise,
substantive, fully justified, and complete comments on the stated or
unstated environmental impacts of the proposed action and, if
appropriate, on alternatives to the action. Comments, either positive
or negative, shall be objective and constructive.
(4) Departmental review comments shall be organized as follows:
(a) Control Number. The Departmental review control number shall be
typed in the upper left hand corner below the Departmental seal on the
letterhead page of the comments.
(b) Introduction. The introductory paragraph shall reference the
other Federal agency's review request, including the date, the type of
review requested, the subject of the review; and, where appropriate,
the geographic location of the subject and the other agency's control
number.
(c) General Comments, if any. This section will include those
comments of a general nature and those which occur throughout the
review which ought to be consolidated in order to avoid needless
repetition.
(d) Detailed Comments. The format of this section shall follow the
organization of the other agency's environmental review document. These
comments shall not comment on the proposed actions of other Federal
agencies, but shall constructively and objectively comment on the
statement's adequacy in describing the environmental impacts of the
action, the alternatives, and the impacts of the alternatives. Comments
shall specify any corrections, additions, or other changes required to
make the statement adequate.
(e) Summary Comments, if any. In general, the Department will not
take a position on the proposed action of another Federal agency, but
will limit its comments to those above. However, in those cases where
the Department has jurisdiction by statute, executive order, memorandum
of agreement, or other authority, the Department may comment on the
proposed action. These comments shall be provided in this section and
may take the form of support for, concurrence with, concern over, or
objection to the proposed action and/or the alternatives.
B. Bureau and Office Comments
Bureau and office reviews of EISs prepared by other Federal
agencies are considered informal inputs to the Department's comments
and their content will generally conform to paragraph 7.5A of this
chapter with the substitution of the bureau's or office's delegated
jurisdiction or special environmental expertise for that of the
Department.
C. Relationship to Other Concurrent Reviews
(1) Where the Department, because of other authority or agreement,
is concurrently requested to review a proposal as well as its EIS, the
Department's comments on the proposal shall be separately identified
and placed in front of the comments on the EIS. A summary of the
Department's position, if any, on the proposal and its environmental
impact shall be separately identified and follow the review comments on
the EIS.
[[Page 10886]]
(2) Where another Federal agency elects to combine other related
reviews into the review of the EIS by including additional or more
specific information into the statement, the introduction to the
Department's review comments will acknowledge the additional review
request and the review comments will be incorporated into appropriate
parts of the combined statement review. A summary of the Department's
position, if any, on the environmental impacts of the proposal and any
alternatives shall be separately identified and follow the detailed
review comments on the combined statement.
(3) In some cases, the concurrent review is not an integral part of
the environmental compliance review but is being processed within the
same general time period as the environmental review. If there is also
an environmental review being processed by the OEPC, there is potential
for two sets of conflicting comments to reach the requesting agency.
Bureaus must recognize that this possibility exists and must check with
the Regional Environmental Officer to determine the status of any
environmental review prior to forwarding the concurrent review comments
to the requesting agency. Any conflicts must be resolved before the
separate comments may be filed. One review may be held up pending
completion of the concurrent review and consideration of filing a
single comment letter. A time extension may be necessary and must be
obtained if a review is to be held up pending completion of a
concurrent review.
(4) The Department's intervention in another agency's adjudicatory
process is also a concurrent review. Such reviews are governed by 452
DM 2 which must be consulted in applicable cases. The most common cases
involve the Department's review of hydroelectric and natural gas
applications of the Federal Energy Regulatory Commission. In these
cases, it is recommended that bureaus consult frequently with the
appropriate attorney of record in the Office of the Solicitor.
7.6 Availability of Review Comments
A. Prior to the public availability of another Federal agency's
final EIS, the Department shall not independently release to the public
its comments on that agency's draft EIS. In accordance with section
1506.6(f) of the CEQ Regulations, the agency that prepared the
statement is responsible for making the comments available to the
public, and requests for copies of the Department's comments shall be
referred to that agency. Exceptions to this procedure shall be made by
the OEPC and the Office of the Solicitor.
B. The availability of various internal Departmental memoranda,
such as the review comments of bureaus, offices, task forces, and
individuals, which are used as inputs to the Department's review
comments is governed by the Freedom of Information Act (5 U.S.C. 552)
and the Departmental procedures established by 43 CFR 2. Upon receipt
of such requests and in addition to following the procedures above in
A., the responsible bureau or office shall notify and consult their
bureau Freedom of Information Act Officer and the OEPC to coordinate
any responses.
7.7 Procedures for Processing Environmental Reviews
A. General Procedures
(1) All requests for reviews of environmental review documents
prepared by or for other Federal agencies shall be received and
controlled by the Director, OEPC.
(2) If a bureau or office, whether at headquarters or field level,
receives an environmental review document for review directly from
outside of the Department, it should ascertain whether the document is
a preliminary, proposed, or working draft circulated for technical
assistance or input in order to prepare a draft document or whether the
document is in fact a draft environmental review document being
circulated for official review.
(a) If the document is a preliminary, proposed, or working draft,
the bureau or office should handle independently and provide whatever
technical assistance possible, within the limits of their resources, to
the requesting agency. The response should clearly indicate the type of
assistance being provided and state that it does not represent the
Department's review of the document. Each bureau or office should
provide the Regional Environmental Officer and the Director, OEPC,
copies of any comments involving significant or controversial issues.
(b) If the document is a draft or final environmental review
document circulated for official review, the bureau or office should
inform the requesting agency of the Department's procedures in
subparagraph (1) above and promptly refer the request and the document
to the Director, OEPC, for processing.
(3) All bureaus and offices processing and reviewing environmental
review documents of other Federal agencies will do so within the time
limits specified by the Director, OEPC. From thirty (30) to forty-five
(45) days are normally available for responding to other Federal agency
review requests. Whenever possible the Director, OEPC, shall seek a
forty-five (45) day review period. Further extensions shall be handled
in accordance with paragraph 7.7B (3) of this chapter.
(4) The Department's review comments on other Federal agencies'
environmental review documents shall reflect the full and balanced
interests of the Department in the protection and enhancement of the
environment. Lead bureaus shall be responsible for resolving any intra-
Departmental differences in bureau or office review comments submitted
to them. The OEPC is available for guidance and assistance in this
regard. In cases where agreement cannot be reached, the matter shall be
referred through channels to the AS/PMB with attempts to resolve the
disagreement at each intervening management level. The OEPC will assist
in facilitating this process.
B. Processing Environmental Reviews
(1) The OEPC shall secure and distribute sufficient copies of
environmental review documents for Departmental review. Bureaus and
offices should keep the OEPC informed as to their needs for review
copies, which shall be kept to a minimum, and shall develop internal
procedures to efficiently and expeditiously distribute environmental
review documents to reviewing offices.
(2) Reviewing bureaus and offices which cannot meet the review
schedule shall so inform the lead bureau and shall provide the date
that the review will be delivered. The lead bureau shall inform the
OEPC in cases of headquarters-level response, or the Regional
Environmental Officer in cases of field-level response, if it cannot
meet the schedule, why it cannot, and when it will. The OEPC or the
Regional Environmental Officer shall be responsible for informing the
other Federal agency of any changes in the review schedule.
(3) Reviewing offices shall route their review comments through
channels to the lead bureau, with a copy to the OEPC. When, in cases,
of headquarters-level response, review comments cannot reach the lead
bureau within the established review schedule, reviewing bureaus and
offices shall send a copy marked ``Advance Copy'' directly to the lead
bureau. Review comments shall also be sent to the lead bureau by
electronic means to facilitate meeting the requesting agency's
deadline.
(4) In cases of headquarters-level response:
(a) The lead bureau shall route the completed comments through
channels
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to the OEPC in both paper copy and electronic word processor format.
Copies shall be prepared and attached for all bureaus and offices from
whom review comments were requested, for the OEPC, and for the Regional
Environmental Officer when the review pertains to a project within a
regional jurisdiction. In addition, original copies of all review
comments received or documentation that none were provided shall
accompany the Department's comments through the clearance process and
shall be retained by the OEPC.
(b) The OEPC shall review, secure any necessary additional
surnames, surname, and either sign the Department's comments or
transmit the Department's comments to another appropriate Secretarial
Officer for signature. Upon signature, the OEPC shall transmit the
comments to the requesting agency.
(5) In cases of field-level response:
(a) The lead bureau shall provide the completed comments to the
appropriate Regional Environmental Officer in both paper-copy and
electronic word processor format. In addition, original copies of all
review comments received or documentation that none were provided shall
be attached to the paper copy.
(b) The Regional Environmental Officer shall review, sign, and
transmit the Department's comments to the agency requesting the review.
In addition they shall reproduce and send the Department's comments to
the regional bureau reviewers. The entire completed package including
the bureau review comments shall be sent to the OEPC for recording and
filing.
(c) If the Regional Environmental Officer determines that the
review involves policy matters of Secretarial significance, they shall
not sign and transmit the comments as provided in subparagraph (b)
above, but shall forward the review to the OEPC in headquarters for
final disposition.
C. Referrals of Environmentally Unsatisfactory Proposals to the Council
on Environmental Quality
(1) Referral to CEQ is a formal process provided for in the CEQ
Regulations (40 CFR 1504). It is used sparingly and only when all other
administrative processes have been exhausted in attempting to resolve
issues between the project proponent and one or more other Federal
agencies. These issues must meet certain criteria (40 CFR 1504.2), and
practice has shown that these issues generally involve resource
concerns of national importance to the Department.
(2) A bureau or office intending to recommend referral of a
proposal to CEQ must, at the earliest possible time, advise the
proponent Federal agency that it considers the proposal to be a
possible candidate for referral. If not expressed at an earlier time,
this advice must be outlined in the Department's comments on the draft
EIS.
(3) CEQ referral is a high level activity that must be conducted in
an extremely short time frame. A referring bureau or office has 25 days
after EPA has published a notice of availability of the final EIS in
the Federal Register in which to file the referral unless an extension
is granted per 40 CFR 1504.3(b). The referral documents must be signed
by the Secretary of the Interior.
(4) Additional review guidance may be made available as necessary
to efficiently manage this activity. Bureau reviewers should review
information on the OEPC Web site at http://www.doi.gov/oepc and consult
with the OEPC for the most current review guidance.
[FR Doc. 04-4945 Filed 3-5-04; 8:45 am]