HHS General Administration Manual Part 30 Environmental Protection

The environmental statutes and Executive Orders described in this chapter require consideration of the effects of a proposed action on specific types of places or species. Generally, they prohibit further action until the Federal agency proposing to take action has consulted with the Federal or State agency responsible for administering the law. The species requiring consideration are listed by the Department of the Interior. The places requiring consideration are:

1. Coastal Zones (as identified in a State coastal zone management plan);

2. Habitats of Endangered Species (as identified by the Department of the Interior);

3. Streams and other bodies of water;

4. Floodplains (as identified on HUD floodplain maps);

5. Marine Sanctuaries (as identified by the Secretary of Commerce);

6. Sole Source Aquifers (as identified by the Environmental Protection Agency);

7. Wetlands (all); and

8. Wild and Scenic Rivers (as identified by the Departments of the Interior and Agriculture).

Table 1 indicates whether the administering agency has published regulations implementing the consultation requirement. OPDIVs/STAFFDIVs are responsible for consulting with the appropriate Federal or State agency before taking action in accordance with the procedures in this chapter and in the applicable statute, Executive Order, or implementing regulation.

OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions to determine whether they will affect places and species described in this chapter. OPDIVs/ STAFFDIVs are to evaluate the potential effects of a proposed action in accordance with the procedures for National Environmental Policy Act (NEPA) review in chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, the documentation required by the applicable statute or Executive Order and the administering agency regulations are to be included in the EA or EIS. In addition, the consultation procedures required by the environmental statute or Executive Order shall be followed.

1. Purpose. The Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. '' 1451-1464, declares that it is the national policy "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone..." In furtherance of this policy, the Act provides Federal assistance to States for developing and implementing coastal zone management programs. Section 307(c)(1)(A) of the CZMA (16 U.S.C. ' 1456(c)(1)(A)) provides that "each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs."

   National Oceanic and Atmospheric Administration (NOAA) regulations codified at 15 CFR Part 930, Subpart C--Consistency for Federal Activities, implements Section 307 of the CZMA. These "consistency" regulations are designed to assure that all Federally conducted or supported activities, including development projects, directly affecting the coastal zone are undertaken in a manner consistent to the maximum extent practicable with approved State coastal management programs.

2. Definitions

1. Federal activity. The term "Federal activity" means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities. The term "Federal activity" does not include the issuance of a Federal license or permit to an applicant or person or the granting of Federal assistance to an applicant agency.

2. Federal development project. The term "Federal development project" means a Federal activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources.

3. Coastal Zone. The CZMA defines the term "coastal zone" as "the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches." Zone boundaries are described in 16 U.S.C. ' 1453(1). The CZMA excludes from the definition of coastal zone lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers, or agents (e.g.,, nonterminated California Indian rancherias).

4. "Consistent to the maximum extent practicable." The term "consistent to the maximum extent practicable" describes the requirement for Federal activities, including development projects, directly affecting the coastal zone of States with approved management programs to be fully consistent with such programs unless compliance is prohibited based upon the requirements of existing law applicable to the Federal agency's operations.

3. Requirement. An OPDIV/STAFFDIV undertaking any development project in the coastal zone of a State shall ensure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.

   OPDIVs/STAFFDIVs shall determine which of their activities directly affect the coastal zone of States with approved management programs. OPDIVs/STAFFDIVs shall consider all development projects within the coastal zone to be activities directly affecting the coastal zone. All other types of activities within the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone. Federal activities outside of the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone.

4. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action affecting a coastal zone in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a consistency determination, described in 30-40-10E, shall be included in the EA or EIS.

5. Consistency Determination. OPDIVs/STAFFDIVs shall provide State agencies with consistency determinations for all Federal activities directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to consult with State agencies during their efforts to assess whether an action will be consistent to the maximum extent practicable with a State management program.

   A consistency determination should be prepared following development of sufficient information to determine reasonably the consistency of the activity with the State's management program, but before the OPDIV/STAFFDIV reaches a significant point of decision-making in its review process. An OPDIV/STAFFDIV shall provide a consistency determination to the relevant State agency designated under Section 306(d)(6) of the CZMA (16 U.S.C. ' 1455(d)(6)) at the earliest practicable time in the planning or reassessment of the activity, but in no case later than 90 days before final approval of the Federal activity, unless both the OPDIV/STAFFDIV and the State agency agree to a different schedule.

   OPDIVs/STAFFDIVs must ensure that their activities are consistent to the maximum extent practicable with the enforceable, mandatory policies of the management program. However, OPDIVs/STAFFDIVs need only give adequate consideration to management program provisions which are in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have to evaluate coastal zone effects for which the management program does not contain mandatory or recommended policies because, in the absence of such provisions, there is no basis for making a consistency determination with respect to such effects.

6. Negative Determination. If a OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

   If a OPDIV/STAFFDIV decides that a consistency determination is not required for a Federal activity (1) identified by a State agency on its list or through case-by-case monitoring, (2) which is the same as or similar to activities for which consistency determinations have been prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a thorough consistency assessment and developed initial findings on the effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall provide the State agency with a notification, at the earliest practicable time in the planning of the activity, briefly setting forth the reasons for its negative determination. A negative determination shall be provided to the State agency at least 90 days before final approval of the activity, unless both the OPDIV/STAFFDIV and the State agency agree to an alternative notification schedule.

7. Content of a consistency determination. The consistency determination shall include a brief statement indicating whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the management program. The statement must be based upon an evaluation of the relevant provisions of the management program. The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal zone effects, and comprehensive data and information sufficient to support the consistency statement. The amount of detail in the statement evaluation, activity description, and supporting information shall be commensurate with the expected effects of the activity on the coastal zone.

   If HHS standards are more restrictive than standards or requirements contained in the State's management program, the State should be informed in the consistency determination of the statutory, regulatory, or other basis for the application of the stricter standards.

   If an OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

8. State Review Period. A State agency is required to inform the OPDIV/STAFFDIV of its agreement or disagreement with the consistency determination at the earliest practicable time. OPDIVs/STAFFDIVs may presume State agency agreement if the State agency fails to provide a response within 45 days from receipt of the consistency determination. State agency agreements shall not be presumed in cases where the State agency, within the 45 day period, requests an extension of time to review the matter.

   OPDIVs/STAFFDIVs shall approve one request for an extension period of 15 days or less. In considering whether a longer or additional extension period is appropriate, consideration should be given by the OPDIV/STAFFDIV to the magnitude and complexity of the information contained in the consistency determination.

9. Final Action. An OPDIV/STAFFDIV shall not undertake final action sooner than 90 days from the issuance of the consistency or negative determination to the State agency unless both the OPDIV/STAFFDIV and the State agency agree to an alternative period.

10. Mediation by Secretary of Commerce. In the event of a serious disagreement between an OPDIV/STAFFDIV and a State agency regarding a determination related to whether a proposed activity directly affects the coastal zone, either party may seek the Secretarial mediation services provided for in Subpart G of 15 CFR Part 930.

11. Licenses, permits. OPDIVs/STAFFDIVs shall follow the procedures in 15 CFR Part 930 when the action involves an applicant for a Departmental license or permit.

12. Excluded Actions. The requirements in this section shall not apply to those types of actions which are specifically excluded by the approved CZM plan.

1. Purpose. The Endangered Species Act of 1973, 16 U.S.C. 1531-1544, directs Federal agencies, in consultation with either the Secretary of the Interior or of Commerce, as appropriate, to carry out conservation programs for endangered or threatened species of fish, wildlife, or plants ("listed species") and habitat of such species that has been designated as critical ("critical habitat"). Such affirmative conservation programs must comply with applicable permit requirements for listed species and should be coordinated with the appropriate Secretary.

   Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every Federal agency, in consultation with the assistance of the appropriate Secretary, to ensure that any action it authorizes, funds, or carries out, is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. The Act also requires Federal agencies to confer with the Secretary of the Interior or of Commerce on any action that is likely to jeopardize the continued existence of a proposed species or result in the destruction or adverse modification of a proposed critical habitat. The Act prohibits Federal agencies from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or the destruction or adverse modification of critical habitat. Section 9 of the Act prohibits any unauthorized "take" of listed species. The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act.

2. Governing Regulations and Organization Responsible for Consultation. Interagency consultation procedures under the Endangered Species Act are codified at 50 CFR Part 402. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12. The designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR Part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/STAFFDIV shall contact the NMFS. For all other listed species, an OPDIV/STAFFDIV shall contact the FWS.

3. Definitions. The regulations governing interagency cooperation and consultation under the ESA in 50 CFR Part 402 define many of the terms and phrases that are used in the regulations and this section.

   1. Biological Assessment. A biological assessment is a document, prepared by or under the direction of a Federal agency, concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation of potential effects of the action on such species and habitat.

   2. Biological Opinion. A biological opinion is the document that states the opinion or the FWS or the NMFS as to whether or not a proposed Federal agency action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. The Service may issue one of two types of opinions:

   1. Jeopardy Biological Opinion. An opinion by the Service that the proposed Federal agency action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a "jeopardy biological opinion"

      .

   2. No Jeopardy Biological Opinion. An opinion by the Service that the proposed Federal agency action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a "no jeopardy" biological opinion.

   3. Director. The term "Director" refers to, as appropriate, the:

   1. Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration or an authorized representative; or

   2. Fish and Wildlife Service Regional Director, or authorized representative, for the region where the action would be carried out.

   4. Listed Species. Listed species means any species of fish, wildlife, or plant which has been determined to be endangered or threatened under Section 4 of the Act. Listed species are found in 50 CFR '' 17.11-17.12.

   5. Service. The term "Service" means the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.

4. Integration with NEPA. The consultation, conference, and biological assessment procedures required by Section 7 of ESA that are summarized in this section may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the requirements of these other statutes, however, does not in itself relieve an OPDIV/STAFFDIV of its obligations to comply with the procedures set forth in 50 CFR Part 402 or the substantive requirements of Section 7 of ESA. Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes.

5. Integration with NEPA. The consultation, conference, and biological assessment procedures required by Section 7 of ESA that are summarized in this section may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the requirements of these other statutes, however, does not in itself relieve an OPDIV/STAFFDIV of its obligations to comply with the procedures set forth in 50 CFR Part 402 or the substantive requirements of Section 7 of ESA. Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes.

   The conclusions reached during a conference and any recommendations will be documented by the Service and provided to the OPDIV/STAFFDIV. The results of the conference shall be included in the HHS organization's appropriate documentation if the proposed action is being reviewed in accordance with NEPA procedures in Chapter 30-50.

6. Biological Assessment

1. Purpose. An OPDIV/STAFFDIV shall use the biological assessment in determining whether a conference is required with the Service. If the biological assessment indicates that the action is not likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat, and the Director concurs, then a conference is not required. The Director may use the results of the biological assessment in (1) determining whether to request the OPDIV/STAFFDIV to initiate a conference, (2) formulating a biological opinion, or (3) formulating a preliminary biological opinion.

2. Requirement. A biological assessment shall be prepared for all major construction activities. The biological assessment shall be completed before any contract for construction is entered into and before construction is begun.

3. Request for information. The OPDIV/STAFFDIV shall convey to the Director either (1) a written request for a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area; or (2) a written notification of the species and critical habitat that are being included in the biological assessment. Within 30 days of receipt of the notification of, or the request for, a species list, the Director shall either concur with or revise the list. If the Director advises that no listed species or critical habitat may be present, a biological assessment and further consultation is not required. If only proposed species or proposed critical habitat may be present in the action area, the OPDIV/STAFFDIV must confer with the Service if required under 50 CFR ' 402.10, but preparation of a biological assessment is not required unless the proposed listing and/or designation becomes final.

4. Contents. The contents of a biological assessment are at the discretion of the submitter and will depend on the nature of the Federal action. The following may be considered for inclusion:

1. The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally;

2. The views of recognized experts on the species at issue;

3. A review of the literature and other information;

4. An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies;

5. An analysis of alternate actions considered by the Federal agency for the proposed action.

5. Submission of Biological Assessment. The OPDIV/STAFFDIV shall submit the completed biological assessment to the Director for review within 180 days after its initiation. The Director will respond in writing within 30 days as to whether or not the Director concurs with the findings of the biological assessment. An OPDIV/STAFFDIV, at its option, may request that formal consultation be initiated concurrently with the submission of the assessment.

7. Formal Consultation Process for Listed Species and Critical Habitat

   1. Consultation Requirement. An OPDIV/STAFFDIV shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in this subsection. An OPDIV/STAFFDIV need not initiate formal consultation if, as a result of the preparation of a biological assessment under 50 CFR ' 402.12 or as a result of information consultation with the Service under 50 CFR ' 402.13, the OPDIV/STAFFDIV determines, with the written concurrence of the Director of the Service, that the proposed action is not likely to adversely affect any listed species or critical habitat. Formal consultation shall not be initiated by an OPDIV/STAFFDIV until any required biological assessment has been completed and submitted to the Director in accordance with 50 CFR ' 402.12.

   2. Contents of Request. A written request to initiate formal consultation shall be submitted to the Director of the Service and shall include:

   1. A description of the action to be considered;

   2. A description of the specific area that may be affected by the action;

   3. A description of any listed species or critical habitat that may be affected by the action;

   4. A description of the manner in which the action may affect any listed species or critical habitat and an analysis of any cumulative effects;

   5. Relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared; and

   6. Any other relevant available information on the action, the affected listed species, or critical habitat.

   An OPDIV/STAFFDIV that requests formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat.

8. Irreversible or Irretrievable Commitment of Resources. After initiation or reinitiation of consultation required under ESA, an OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment of resources with respect to the proposed action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating ESA. This prohibition remains in force during the consultation process and continues until the requirements of Section 7(a)(2) of ESA are satisfied.

   Note: The prohibition in this subsection does not apply to the conference requirement for proposed species or proposed critical habitat under Section 7(a)(4) of the Act.

9. Duration and Extension of Formal Consultation. Formal consultation concludes within 90 days after its initiation unless extended in accordance with 50 CFR ' 402.14(e). If the Service does not respond within 90 days, the Department may reach its own conclusion with respect to whether the proposed action will jeopardize the continued existence of a species or result in the destruction or adverse modification of a critical habitat.

10. Issuance of Biological Opinion. The Service will provide a biological opinion to the OPDIV/STAFFDIV at the end of the consultation process as to whether the proposed action, taken together with cumulative effects, would be likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of a critical habitat. A "jeopardy" biological opinion by the Service will include reasonable and prudent alternatives, if any, to the proposed agency action that can be taken by the OPDIV/STAFFDIV to avoid violation of ESA. If the Service is unable to develop such alternatives, it will indicate that to the best of its knowledge, there are no reasonable and prudent alternatives. The Service may also formulate discretionary conservation recommendations, if any, which will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts that its proposed action may have on listed species or critical habitat.

    The Service's "no jeopardy" or "jeopardy" biological opinion shall be included in any documentation required under NEPA procedures if the proposed action is being assessed in accordance with NEPA and the procedures in Chapter 30-50.

11. Termination of Consultation Process. Formal consultation is terminated with the issuance of the biological opinion or if, during any stage of consultation, an OPDIV/STAFFDIV determines, with the concurrence of the Director, that its proposed action is not likely to adversely affect any listed species or critical habitat. If an OPDIV/STAFFDIV determines that its proposed action is not likely to occur, it may terminate the consultation process by written notice to the Service.

12. Responsibilities After Issuance of Biological Opinion. Following the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine whether and in what manner to proceed with the action in light of its ESA Section 7 obligations and the Service's biological opinion.

    If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV shall notify the Service of its final decision on the action. If the OPDIV/STAFFDIV determines that it cannot comply with the requirements of Section 7(a)(2) of ESA after consultation with the Service, it may apply for an exemption. Procedures for exemption applications by Federal agencies and others are found in 50 CFR Part 451. No action shall occur unless or until the OPDIV/STAFFDIV has received approval of the exemption.

13. Emergencies. The interagency cooperation regulation in 50 CFR Part 402 provides that where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of Sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies. An OPDIV/STAFFDIV may request expedited consultation by submitting information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. Formal consultation is to be initiated as soon as practicable after the emergency is under control.

14. Exemptions. ESA provides procedures for granting exemptions from the requirements of Section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR Part 451, and regulations governing the exemption process are found at 50 CFR Parts 450, 452, and 453.

15. Applicant Procedures. ESA and the implementing procedures in 50 CFR Part 402 provide for participation in the conference and consultation processes by any person (as defined in Section 3(13) of the Act) who requires formal approval or authorization from HHS as a prerequisite to conducting the action.