[Federal Register: September 4, 2003 (Volume 68, Number 171)]
[Notices]
[Page 52595-52608]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se03-59]
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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 proposed revised procedures.
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SUMMARY: This notice proposes revised Departmental policies and
procedures for compliance with the National Environmental Policy Act
(NEPA), as amended, Executive Order 11514, as amended, Executive Order
12114, and the Council on Environmental Quality's Regulations. This
action is necessary to update these procedures and to make them
available to the public on the Department's Internet site. When
adopted, these procedures will be published in Part 516 of the
Departmental Manual (DM) and will be added to the Electronic Library of
Interior Policies (ELIPS). ELIPS is located at: http://elips.doi.gov/.
For comparison purposes, the 1980 chapters that are currently in force
presently appear at this Web site. These proposed procedures do not
change any bureau procedures (see SUPPLEMENTARY INFORMATION below).
DATES: Submit comments on or before October 6, 2003.
ADDRESSES: Comments may be mailed to: Department of the Interior; NEPA
Revised Implementing Procedures; c/o The Content Analysis Team; US
Forest Service; P.O. Box 221150; Salt Lake City, UT 84122. Comments may
also be faxed to the Content Analysis Team at: 801-517-1015. Finally
comments may be e-mailed to the team at: DOINEPA@fs.fed.us.
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: These procedures address policy as well as
procedure in order to assure compliance with the spirit and intent of
NEPA. They update our 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 continue to set
forth one set of broad Departmental directives and instructions to all
bureaus and offices of the Department to follow in their NEPA
compliance activities. In the current chapters, the Department's
bureaus published appendices to Chapter 6 to further describe each
bureau's NEPA compliance program. In order to more efficiently handle
these appendices in the ELIPS system, it has been decided to rename
them as new chapters to this DM part. Therefore, this publication
expands the chapter numbering system from 516 DM 8 through 516 DM 15 to
contain the old bureau appendices. These chapters have already received
public review and are final. They may be viewed and downloaded from
ELIPS. Comments are not being requested on these chapters. Chapters 8
through 15 may be revised in the future to further conform to the
revised Chapters 1-7. If so, they will each appear for comment in the
Federal Register at the appropriate time. In accordance with 1507.3 of
the CEQ Regulations, this Department is consulting with CEQ and is
hereby requesting public review and comment on the proposed procedures.
Background: On August 28, 2000, the Department published these
procedures in draft form and invited the public to make comments.
Several reviewers requested a time extension, and a time extension was
granted through the close of business on November 13, 2000. That
publication has never been made final, and all comments received to
date on that publication have been read, analyzed, and considered in
the revision process. Internal Departmental review and revision has
continued throughout 2001 and 2002. In early 2003, the Department held
four listening sessions to seek views and comments on this process.
Those sessions were held in Washington, DC; Denver, CO; Portland, OR;
and Anchorage, AK. Again, those comments have been taken into account
in revising these chapters. The procedures have also been recirculated
in the Department for further review and clearance by each bureau and
assistant secretary.
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 draft, 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. 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
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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 4.16).
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
Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
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)
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 local partnerships 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 and those aspects of the human environment as identified in
Section 101 of NEPA;
C. To interpret and administer, to the fullest extent possible,
the policies,
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regulations, and public laws of the United States administered by
the Department in accordance with the requirements 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;
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, 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, 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), ensure that consensus-based management \1\ and
community-based NEPA training \2\ are made available and used 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 full
inclusion of all stakeholders with some assurance for the
participants that the results of their work will be given serious
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 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 be adopted, where applicable, for any
mitigation activity.
E. Heads of Regional, Field, or Area Offices
(1) Shall comply fully with NEPA policies and procedures.
(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
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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
decisionmaking 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, 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 to implementation of the
bureau or office decision. 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.
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 States or 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 consultation with the Office of
Communications, 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. (See also
301 DM 2.)
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.
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 apparent discrepancies between 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:
[[Page 52599]]
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 compliance.
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 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
stakeholders as early as possible (including 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 to facilitate this process. Further, it is the intent
of these procedures to 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.
2.3 Whether To Prepare an Environmental Impact Statement (EIS) (40
CFR 1501.4)
A. Categorical Exclusions (CX) (40 CFR 1508.4)
(1) The following criteria will be used to determine actions to
be categorically excluded from the NEPA process: (a) The action or
group of actions would have no significant individual or cumulative
effect on the quality of the human environment [NEPA; Section
102(2)(c)]; and (b) The action or group of actions would not involve
unresolved conflicts concerning alternative uses of available
resources [NEPA; Section 102(2)(e)].
(2) Based on the above criteria, the classes of actions listed
in Appendix 1 to this Chapter are categorically excluded,
Department-wide, from the NEPA process. 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 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 exceptions to
categorical exclusions listed in Appendix 2 of this Chapter apply to
extraordinary circumstances in which a normally excluded action may
have a significant environmental effect. 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, 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 Section
1508.13 should be interpreted as attach(ed)4 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 Section 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. 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. In general, 40 CFR 1501.5 describes the selection of lead
agencies, the settlement of lead agency disputes, and the concept of
joint lead. While the joint lead relationship is not precluded among
several Federal agencies, the Department recommends that it be
applied sparingly. Instead, the Department recommends 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 ensure themselves that the ensuing
NEPA document will meet their needs for adoption and application to
their related decision, if one exists. If joint lead is dictated by
other law, regulation, policy, or practice, then only one Federal
agency may be the official filing agency for the EIS.
E. Lead agency designations may be required by law in certain
circumstances.
[[Page 52600]]
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 may determine by
letter or memorandum their respective roles, assignment of issues,
and commitment to keeping the NEPA process on track and within time
schedules.
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 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
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 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 already excluded in
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, 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.
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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
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 adverse effects on public health or safety.
2.2 Have adverse effects on such natural resources and unique
geographic characteristics as historic or cultural
[[Page 52601]]
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; 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 Be directly related to other actions with individually
insignificant but cumulatively significant environmental effects.
2.7 Have adverse effects on properties listed, or eligible for
listing, in the National Register of Historic Places.
2.8 Have adverse effects on species listed, or proposed to be
listed, on the List of Endangered or Threatened Species, or have
adverse effects on designated Critical Habitat for these species.
2.9 Have the potential to violate a Federal law, or a State, local,
or tribal law or requirement imposed for the protection of the
environment.
2.10 Have the potential for a disproportionately high and adverse
effect on low income or minority populations (Executive Order
12898).
2.11 Restrict access to and ceremonial use of Indian sacred sites by
Indian religious practitioners or adversely affect the physical
integrity of such sacred sites (Executive Order 13007).
2.12 Significantly 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. 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 that 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 or augmented EA is adopted, 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 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 notice of sale
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)].
[[Page 52602]]
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 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.
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 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, through 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 best 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 Alternatives--This term means
alternatives that will 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.
(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
alternative(s) put forth by participating communities. 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, and 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
[[Page 52603]]
that conclusion unless explicit reference by footnote is made to
other supporting documentation that is readily available to the
public.
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.
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. 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
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. Informal attempts will be made to
determine the status of any such comments and every reasonable
attempt should be made to include the comments and a response in the
final EIS.
B. When other commenters are late, their comments should be
included in the final EIS 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 (110 DM 22) 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.
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 EISs 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.
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 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.
[[Page 52604]]
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.
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 serious resource losses. 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 110 DM 22.)
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 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 categorical exclusions.
B. Bureau requirements are found in the following chapters for
the current bureaus:
(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.
[[Page 52605]]
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
Section 102(2)(C) of the National Environmental Policy Act of 1969
(PL 91-190, 83 Stat. 852, January 1, 1970, NEPA); Section 2(f) of
Executive Order No. 11514 (March 5, 1970); the CEQ Regulations (43
FR 55990, November 28, 1978; CEQ); Bulletin No. 72-6 of the Office
of Management and Budget (September 14, 1971); and provide guidance
to bureaus and offices of the Department in the review of EISs
prepared by and for other Federal agencies.
B. In accordance with 112 DM 4.2F, these procedures further
govern the Department's environmental review of non-Interior
proposals such as regulations, applications, plans, reports, and
other environmental documents which affect the interests of the
Department. Such proposals are prepared, circulated, and reviewed
under a wide variety of statutes and regulations. These procedures
ensure that the Department responds to these review requests with
coordinated comments and recommendations under Interior's various
authorities.
7.2 Policy
The Department considers it a priority to provide competent and
timely review comments on EISs and other environmental or project
review documents prepared by other Federal agencies for their major
actions which significantly affect the quality of the human
environment. All such documents are hereinafter referred to as
``environmental review documents.'' The term ``environmental review
document'' as used in this chapter is separate from and broader than
the term ``environmental document'' found in 40 CFR 1508.10 of the
CEQ Regulations. These reviews are predicated on the Department's
jurisdiction by law or special expertise with respect to the
environmental impact involved and shall provide constructive
comments to other Federal agencies to assist them in meeting their
environmental responsibilities.
7.3 Responsibilities
A. The 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.
(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 or Reports
(1) EAs or reports 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 determine whether an EIS
should be prepared, or to provide input into an EIS. If they are
separately circulated, it is generally for the purpose of soliciting
additional information concerning environmental impacts.
(2) Requests for reviews of EAs or reports 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. Such findings 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
[[Page 52606]]
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
environmental expertise.
(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 consult with the OEPC for the
most current review guidance.
(3) While review of NEPA compliance documents associated with
Corps of Engineers permit applications is managed in accordance with
this Chapter, review of Corps of Engineers permit applications is
managed in accordance with 503 DM 1. Reviewers are referred to that
Manual Part and to 7.5C.(3) below for the processing of concurrent
reviews.
I. Project Plans and Reports Without Associated Environmental Review
Documents
(1) The Department receives draft and final project plans and
reports under various authorities which do not have environmental
review documents circulated with them. This may be because NEPA
compliance has been completed, will be completed on a slightly
different schedule, NEPA does not apply, or other reasons.
(2) Environmental review of these documents is handled in the
same manner as for draft and final EISs. Additional review guidance
may be made available as necessary to efficiently manage this
activity. Bureau reviewers should 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 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 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.,
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 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 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 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.
[[Page 52607]]
(d) Detailed Comments--
The format of this section shall follow the organization of the
other agency's environmental review document. These comments shall
not approve, disapprove, support, or object to proposed actions of
other Federal agencies, but shall constructively and objectively
comment on the environmental impact of the proposed action, and on
the adequacy of the statement in describing the environmental
impacts of the action, the alternatives (if appropriate), and the
impacts of the alternatives. Comments shall specify any corrections,
additions, or other changes required to make the statement adequate.
(e) Summary Comments, if any--
In general, the Department will not take a position on the
proposed action of another Federal agency, but will limit its
comments to those above. However, in those cases where the
Department has jurisdiction by statute, executive order, memorandum
of agreement, or other authority, the Department may comment on the
proposed action. These comments shall be provided in this section
and may take the form of support for, concurrence with, concern
over, or objection to the proposed action and/or the alternatives.
B. Bureau and Office Comments
Bureau and office reviews of EISs prepared by other Federal
agencies are considered informal inputs to the Department's comments
and their content will generally conform to paragraph 7.5A of this
chapter with the substitution of the bureau's or office's delegated
jurisdiction or special environmental expertise for that of the
Department.
C. Relationship to Other Concurrent Reviews
(1) Where the Department, because of other authority or
agreement, is concurrently requested to review a proposal as well as
its EIS, the Department's comments on the proposal shall be
separately identified and placed in front of the comments on the
EIS. A summary of the Department's position, if any, on the proposal
and its environmental impact shall be separately identified and
follow the review comments on the EIS.
(2) Where another Federal agency elects to combine other related
reviews into the review of the EIS by including additional or more
specific information into the statement, the introduction to the
Department's review comments will acknowledge the additional review
request and the review comments will be incorporated into
appropriate parts of the combined statement review. A summary of the
Department's position, if any, on the environmental impacts of the
proposal and any alternatives shall be separately identified and
follow the detailed review comments on the combined statement.
(3) In some cases, the concurrent review is not an integral part
of the environmental compliance review but is being processed within
the same general time period as the environmental review. If there
is also an environmental review being processed by the OEPC, there
is potential for two sets of conflicting comments to reach the
requesting agency. Bureaus must recognize that this possibility
exists and must check with the Regional Environmental Officer to
determine the status of any environmental review prior to forwarding
the concurrent review comments to the requesting agency. Any
conflicts must be resolved before the separate comments may be
filed. One review may be held up pending completion of the
concurrent review and consideration of filing a single comment
letter. A time extension may be necessary and must be obtained if a
review is to be held up pending completion of a concurrent review.
(4) The Department's intervention in another agency's
adjudicatory process is also a concurrent review. Such reviews are
governed by 452 DM 2 which must be consulted in applicable cases.
The most common cases involve the Department's review of
hydroelectric and natural gas applications of the Federal Energy
Regulatory Commission. In these cases, it is recommended that
bureaus consult frequently with the appropriate attorney of record
in the Office of the Solicitor.
7.6 Availability of Review Comments
A. Prior to the public availability of another Federal agency's
final EIS, the Department shall not independently release to the
public its comments on that agency's draft EIS. In accordance with
Section 1506.6(f) of the CEQ Regulations, the agency that prepared
the statement is responsible for making the comments available to
the public, and requests for copies of the Department's comments
shall be referred to that agency. Exceptions to this procedure shall
be made by the OEPC and the Office of the Solicitor.
B. The availability of various internal Departmental memoranda,
such as the review comments of bureaus, offices, task forces, and
individuals, which are used as inputs to the Department's review
comments is governed by the Freedom of Information Act (5 U.S.C.
Section 552) and the Departmental procedures established by 43 CFR
2. Upon receipt of such requests and in addition to following the
procedures above in 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
[[Page 52608]]
send a copy marked ``Advance Copy'' directly to the lead bureau.
Review comments shall also be sent to the lead bureau by electronic
means to facilitate meeting the requesting agency's deadline.
(4) In cases of headquarters-level response:
(a) The lead bureau shall route the completed comments through
channels to the OEPC in both paper copy and electronic word
processor format. Copies shall be prepared and attached for all
bureaus and offices from whom review comments were requested, for
the OEPC, and for the Regional Environmental Officer when the review
pertains to a project within a regional jurisdiction. In addition,
original copies of all review comments received or documentation
that none were provided shall accompany the Department's comments
through the clearance process and shall be retained by the OEPC.
(b) The OEPC shall review, secure any necessary additional
surnames, surname, and either sign the Department's comments or
transmit the Department's comments to another appropriate
Secretarial Officer for signature. Upon signature, the OEPC shall
transmit the comments to the requesting agency.
(5) In cases of field-level response:
(a) The lead bureau shall provide the completed comments to the
appropriate Regional Environmental Officer in both paper-copy and
electronic word processor format. In addition, original copies of
all review comments received or documentation that none were
provided shall be attached to the paper copy.
(b) The Regional Environmental Officer shall review, sign, and
transmit the Department's comments to the agency requesting the
review. In addition they shall reproduce and send the Department's
comments to the regional bureau reviewers. The entire completed
package including the bureau review comments shall be sent to the
OEPC for recording and filing.
(c) If the Regional Environmental Officer determines that the
review involves policy matters of Secretarial significance, they
shall not sign and transmit the comments as provided in subparagraph
(b) above, but shall forward the review to the OEPC in headquarters
for final disposition.
C. Referrals of Environmentally Unsatisfactory Proposals to the Council
on Environmental Quality
(1) Referral to CEQ is a formal process provided for in the CEQ
Regulations (40 CFR 1504). It is used sparingly and only when all
other administrative processes have been exhausted in attempting to
resolve issues between the project proponent and one or more other
Federal agencies. These issues must meet certain criteria (40 CFR
1504.2), and practice has shown that these issues generally involve
resource concerns of national importance to the Department.
(2) A bureau or office intending to recommend referral of a
proposal to CEQ must, at the earliest possible time, advise the
proponent Federal agency that it considers the proposal to be a
possible candidate for referral. If not expressed at an earlier
time, this advice must be outlined in the Department's comments on
the draft EIS.
(3) CEQ referral is a high level activity that must be conducted
in an extremely short time frame. A referring bureau or office has
25 days after the final EIS has been made available to the EPA,
commenting agencies, and the public 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 consult with the OEPC for the most current review guidance.
[FR Doc. 03-22489 Filed 9-3-03; 8:45 am]