[Federal Register Volume 62, Number 11 (Thursday, January 16, 1997)]
[Notices]
[Pages 2375-2382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1071]
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DEPARTMENT OF THE INTERIOR
National Environmental Policy Act Revised Implementing Procedures
AGENCY: Department of the Interior.
ACTION: Notice of Final Revised Procedures for the Fish and Wildlife
Service (Service).
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SUMMARY: This notice announces final revised procedures for
implementing the National Environmental Policy Act (NEPA) for actions
implemented by the Fish and Wildlife Service in Appendix 1 in the
Department of the Interior's (Departmental) Manual (516 DM 6). The
revisions update the agency's procedures, originally published in 1984,
based on changing trends, laws, and consideration of public comments.
Most importantly, the revisions reflect new initiatives and
Congressional mandates for the Service, particularly involving new
authorities for land acquisition activities, expansion of grant
programs and other private land activities, and increased Endangered
Species Act (ESA) permit and recovery activities. The revisions promote
cooperating agency arrangements with other Federal agencies; early
coordination techniques for streamlining the NEPA process with other
Federal agencies, Tribes, the States, and the private sector; and
integrating the NEPA process with other environmental laws and
executive orders.
EFFECTIVE DATE: January 16, 1997.
FOR FURTHER INFORMATION CONTACT: Don Peterson, Environmental
Coordinator, Fish and Wildlife Service, at (703) 358-2183.
SUPPLEMENTARY INFORMATION: The Service's existing procedures for
implementing NEPA with regard to actions proposed to be carried out by
the Service appear in Appendix 1 to Chapter 6, Part 516, of the
Departmental Manual (516 DM 6, Appendix 1). These procedures are
consistent with the Council on Environmental Quality's (CEQ)
Regulations for Implementing the Procedural Provisions of NEPA
(Regulations). These procedures (Appendix 1) were previously published
in the Federal Register on July 1, 1982 (47 FR 28841), and were
incorporated into the Departmental Manual on April 30, 1984. Proposed
revised procedures were published in the Federal Register on May 1,
1996 (61 FR 19308), for 45-day public review. The comment period closed
June 17, 1996.
The final revisions update organizational changes in the Service
(section 1.1); provide general guidance for NEPA compliance for Service
activities (section 1.2); update guidance to State, local, and private
applicants for permits and Federal assistance provided through Service-
administered programs (section 1.3); update and expand the categorical
exclusions to reflect increased responsibilities, including the
implementation of several new programs (section 1.4); add a new section
that identifies Service actions normally requiring an environmental
assessment (EA) (section 1.5); and revise the list of major actions
normally requiring the development of an environmental impact statement
(EIS) (section 1.6). The Appendix must be read in conjunction with the
Department's NEPA procedures (516 DM 1-6) and CEQ's Regulations (40 CFR
1500-1508). The Department's overall NEPA procedures were published in
the Federal Register on April 23, 1980 (45 FR 27541), and were revised
in 49 FR 21437, on May 21, 1984.
RESPONSE TO COMMENTS: A total of eight responses were received during
the public comment period. As a result of
[[Page 2376]]
these comments and other internal Service input, several technical
changes were made to refine the final revised procedures. The following
is the Service's response to substantive comments.
Streamlining, Increased Inter-Agency Cooperation, and Early
Coordination To Resolve Issues and To Integrate NEPA are Supported
Many commenters supported the changes, particularly those efforts
to integrate Service programs, such as integrating the section
10(a)(1)(B) incidental take process, with NEPA. We are also encouraged
by widespread support for increasing Service involvement in cooperative
efforts with other agencies and for promoting early coordination with
Federal agencies and Tribal, State, and local governments. Additional
language was added to section 1.2 to further encourage cooperative and
early coordination efforts.
There Should be Consistency Between the Service and the National
Marine Fisheries Service in Developing NEPA Procedures for
Implementing The Endangered Species Act
One commenter stated that there should be consistency between the
Service and the National Marine Fisheries Service (NMFS) in developing
NEPA procedures for implementing the provisions of ESA. The Service and
NMFS share in the responsibility of implementing many of the provisions
of ESA. In that regard, the Service and NMFS are working together, to
the extent practicable, given different agency missions and objectives,
to seek consistency in applying NEPA to ESA activities.
An EA Must Be Prepared Prior to Finalizing the Revisions
One commenter stated that the Service must prepare an EA prior to
finalizing these procedural changes. The final NEPA procedures are
considered categorically excluded under an existing Departmental
categorical exclusion (516 DM 2, Appendix 1.10), which applies to
procedures where the environmental effects are too broad, speculative,
or conjectural to lend themselves to meaningful analysis. Individual
Service actions are subject later to the NEPA process, pursuant to
these procedures, either collectively or on a case-by-case basis.
Regional Directors Should Be Responsible for Contacting State,
Tribal, and Local Governments When Initiating an Action
One commenter stated that language should be added to section 1.1E
to require each Regional Director to be responsible for contacting
State, Tribal, and local governments when initiating an action.
Numerous Service guidance documents (e.g., 30 AM 3) already require the
Service to coordinate with the effected public when the Service
proposes actions requiring an EA or EIS. However, to strengthen this
important requirement of the CEQ Regulations, additional language has
been added to section 1.1E.
Executive Order 12996 on ``Management and General Public use of the
National Wildlife Refuge System'' Should be Referenced in the
Procedures
One commenter stated that the recently published Executive Order
12996, signed March 25, 1996, entitled ``Management and General Public
Use of the National Wildlife Refuge System'' should be cited in this
section. We concur and have added appropriate language to section
1.3A(2).
The NEPA Procedures are Confusing as to Whether they Apply to
Service Actions or to the Service Review of Other Agency Activities
One commenter stated that the Service's revised NEPA procedures,
particularly section 1.3B, are confusing as to whether they apply to
Service actions or to the review of other Federal agency activities. We
agree that the revised procedures are not clear on this point. These
procedures apply to Service actions only, including, but not limited
to, proposed construction, changes in land or human use, issuance of
grants, issuance of permits, etc. Section 1.3 provides guidance to
permittees who receive permits, grants, or technical assistance on how
to assist the Service meet its requirements under NEPA, other Federal
laws, and the executive orders. To clarify these procedures, minor
language changes have been made in sections 1.2 and 1.3, including the
deletion of section 1.3B, which primarily deals with the review of
other agency environmental documents.
Terminology to Define Categorical Exclusions is Vague and Undefined
and Could Result in Avoiding EAs and EISs
Several commenters suggested that the Service's use of terminology
such as ``no or minor change'', ``negligible environmental
disturbance'', and ``suitable habitat'', for example, for the
categorical exclusions (section 1.4), should be further defined.
Although the use of this terminology may at times seem vague, to define
limits such as the size of the structure, extent of acreage involved,
number of trees removed, etc., is generally not useful as a NEPA
trigger. Predetermined limits of physical factors often have little
relationship to the actual impact of the action. For example, a
proposal to acquire a 1,000-acre parcel from a willing seller as an
addition to a national wildlife refuge with little or no changes in
management may be categorically excluded because no change in the
environmental conditions is proposed or would occur; whereas, the
acquisition of a 1,000-acre in-holding which could terminate a popular,
locally-significant recreational use, would likely require the
preparation of an EA or EIS. Under the CEQ Regulations, it is the level
of impact or an established need to determine the level of impact that
triggers the preparation of an EA or EIS. In other words, Service
managers make NEPA decision based on the level of anticipated impact,
or uncertainty of the impact of the action, not merely on the physical
size of the action. Service decision makers are given a reasonable
amount of flexibility to make these decisions based on their
consideration of relevant biophysical factors that could result in
anticipated or possible impacts. General guidance is provided in the
Departmental NEPA procedures (516 DM 2, Appendix 2) to help Service
decisionmakers determine when exceptions to a normally categorically
excluded action could occur, thus requiring the preparation of an EA or
EIS. Service guidance is also provided in 30 AM 3.9. The Service will
continue to rely on this guidance and process to ensure proper
compliance with NEPA, consistent with CEQ's Regulations.
The Service is Categorically Excluding Actions That may Require the
Preparation of an EA or EIS
Several commenters were concerned that when impacts of actions,
normally categorically excluded, are substantial, the Service would not
prepare an EA or EIS (section 1.4). Commenters mentioned such actions
as the construction of new structures or improvements, section 10
permits, land acquisition, and fire management. An important factor for
determining when an action can fit an established categorically
exclusion is whether the action could have a significantly impact,
either individually or cumulatively. Departmental procedures (preamble
to section 1.4) clearly state that if there is an exception to the
categorically
[[Page 2377]]
exclusion, an EA or EIS must be prepared. The Departmental procedures
state that categorically exclusions are not the equivalent of statutory
exemptions. Exceptions to the categorical exclusions are found in the
Departmental Manual (516 DM 2, Appendix 2). In the past, environmental
documents have been prepared for the construction of new or improved
structures and for fire-related activities. These procedures continue
to require the preparation of an EA or EIS, when required. To ensure
coordination, compliance, and consistency with other affected Federal
agencies and State, Tribal, and local governments, language to this
affect has been inserted at the beginning of section 1.4B.
The Service has no Mechanisms to Assess the Cumulative Impacts of
its Actions
Several commenters stated that the Service has not mechanism to
assess cumulative impacts of categorically excluded actions (section
1.4), such as multiple minor modifications to existing land use as a
result of land acquisition, section 10(a)(1)(B) incidental take permits
under ESA, listings, designation of critical habitats, or recovery
plans and actions. For land acquisition actions, categorically excluded
activities must meet the three criteria set forth in section 1.4A(4).
In most cases, the land acquisition action covers the administrative
action of transferring title from an owner to the Service. Specific
guidance on land acquisition and the application of NEPA to land
acquisition actions is found Service guidance (341 FW 2). The land
acquisition planning process does not, nor is it intended to, fully
address the impacts of future management decisions for refuge. The
Service believes that aggregate land acquisition actions, per se, when
executed under the Service's current policies and guidelines, are not
causing significant impacts. The future development of refuge
comprehensive management plans and any step-down management plans,
however, are subject to NEPA compliance. The NEPA documents prepared
pursuant to these actions are to address all relevant impacts,
including cumulative impacts associated with the proposed management of
the lands and waters. Specific guidance regarding the development of
these plans and the application of NEPA to the development of
management plans is found in other Service guidance (602 FW 1-3).
One commenter stated that the number of habitat conservation plans
(HCP) prepared pursuant to section 10(a)(1)(B) of the ESA contradicts
the Service's assertion that the impacts of such activities would be
minor or negligible because of the total number of permits issued by
the Service. The commenter combined all HCPs into a single action that
was considered to be inevitably ``significant.'' It was also implied
that these permits are being issued without reference to any legal or
biological standards that mitigate their effects. None of these
assertions are true. Each permit application is evaluated to determine
the effect on individual species or groups of species and the habitat
on which they depend. Mitigation measures are then incorporated into
the HCP and permit, as appropriate, to ensure that there is not adverse
effect on the species. In some cases, the permit conditions may result
in enhancing the species or its habitat. The cumulative impacts from
categorically excluded low-effect HCPs are considered when the Service
performs internal section 7 (ESA) consultation on the proposed action,
pursuant to 50 CFR 402. Under section 7, the cumulative impacts
analysis includes the effects of future State, Tribal, local, or
private actions that are reasonably certain to occur in the action
area. Past activities that may affect the environmental baseline are
also considered. This process will be described in the final Section 7
Handbook and will be referenced in the final Section 10 Handbook, both
to be released in the near future. We believe this process is adequate
for ensuring the consideration of potential cumulative impacts of
multiple low-effect HCPs within the same geographic area.
Regarding listing actions, CEQ has determined that these actions
may be exempt from the requirements of NEPA, including an assessment of
cumulative impacts. This assessment is based, in part, on the ESA
amendments of 1982, which clearly restrict the information upon which
the Secretary of the Interior may make listing decisions. Only
scientific, biological criteria can be considered. The Service
published this finding in the Federal Register on October 1, 1984 (49
FR 38908).
Regarding the cumulative impacts of the designation of critical
habitat and the development of recovery plans, the Service believes
that these activities do not constitute a proposal under NEPA and,
therefore, do not warrant the preparation of an EA or EIS, including an
evaluation of cumulative impacts. Implementation of recovery actions,
however, is subject to NEPA, including the consideration of cumulative
impacts, as appropriate. Refer to other responses below.
The use of Categorical Exclusions Effectively Precludes Public
Involvement in Service Decisions
One commenter stated that categorical exclusions (section 1.4)
effectively preclude public involvement in Service decisions. The CEQ
Regulations clearly focus on those actions with significant impacts on
the quality of the human environment or on those actions whereby such a
determination must be determined (i.e., the EA), from which a better
environmental decision can be encouraged. Categorical exclusions are
categories of similar actions identified by agencies that normally do
not require the preparation of an EA or EIS because the actions do not
individually or cumulatively have a significant effect on the human
environment (40 CFR 1508.4). A major purpose of categorical exclusions
is to preclude such actions from undergoing detailed NEPA examinations
or public review. However, this does not preclude the Service from
involving the affected public in the planning and implementation of
such decision. In some cases, it is mandatory, such as for recovery
plan development. In other cases, the Service routinely includes the
affected public in decisions, such as land acquisition actions, and
issuance of special use permits, where the actions are normally
categorically excluded.
At a Minimum, an EA Should be Prepared for Land Acquisition Actions
One commenter stated that, at a minimum, the Service should prepare
an EA for all land acquisitions in cooperation with State, Tribal, and
local governments [section 1.4A(4)]. All land acquisition proposals for
the establishment or major expansion of national wildlife refuges are
completed with the Service's full consideration of NEPA during the
detailed pre-acquisition planning phase of a proposal. At that time,
the Service considers the environmental impacts of the acquisition of
lands within a proposed acquisition boundary. Proposals for the
establishment of refuges involve appropriate coordination with Federal
agencies and affected State, Tribal, and local governments. Either an
EA or EIS is normally prepared, depending on the significance of
impacts and/or controversy surrounding the proposal (refer to section
1.5A). The categorical exclusion for land acquisition in section
1.4A(4) is utilized for land acquisition within approved established
refuges or for minor adjustments to the acquisition boundary of an
existing refuge. Specific guidance on land acquisition and the
[[Page 2378]]
application of the NEPA process is found in Service guidance (341 FW
2).
Concerns Were Raised Regarding the Categorical Exclusion for the
Reintroduction of Native, Formerly Native, or Established Species
Several commenters raised concerns regarding this categorical
exclusion [section 1.4B(6)]. These concerns are fueled, in part, by
controversy over the reintroductions of the gray wolf, proposed
reintroduction of the Mexican wolf, and debate over the reintroduction
of hatchery-raised fish. One commenter recommended that the categorical
exclusion be deleted.
The Service is involved in numerous reintroductions through various
grants programs (e.g., Federal Aid in Fish and Wildlife Restoration
Acts), recovery actions under ESA, and the Service's Fisheries Program.
The categorical exclusion for this activity applies only when there are
no significant impacts associated with the proposal. The categorical
exclusions must be read in context with the Departmental Manual, 516 DM
2, Appendix 2, which identifies exceptions to the categorical
exclusions. When an exception applies, such as an action with highly
controversial environmental effects, an EA or EIS must be prepared. In
a number of recent reintroductions, such as the reintroduction of the
gray wolf in Yellowstone National Park and central Idaho, and the
proposed reintroduction of the Mexican Wolf in Arizona and New Mexico,
an EIS was prepared due to the controversy over environmental effects
associated with the proposals.
Several commenters raised specific concerns about the use of this
categorical exclusion for the release of hatchery propagated fish. The
Service's National Fish Hatchery System produces various species of
fish for a variety of purposes. Numerous legislative authorities, such
as the Atlantic Striped Bass Conservation Act, Great Lakes Fishery Act,
New England Fishery Resources Restoration Act, Sikes Act, and the Water
Resources Development Act of 1976, to name a few, direct the Service's
Fisheries Program. While it is true that fishery managers in the past
sometimes favored using Federal hatcheries to produce and stock non-
native fishes, these kinds of activities are very limited today. The
Service's Fisheries Program focuses its resources on restoring depleted
native populations of fishes, recovering threatened and endangered
fishes, and maintaining the health and abundance of inter
jurisdictional fish populations. The service uses non-native fish
primarily in waterways grossly altered by water projects and in
artificial impoundments and sterile waterbodies. Any reintroduction
activity covered under this categorical exclusion, whether it involves
native or non-native species, will be subject to the exceptions
procedures in the Departmental Manual (516 DM 2, Appendix 2).
Additional language has been added to this categorical exclusion to
clarify that such reintroductions can be categorically excluded only
when no or negligible environmental disturbances are anticipated.
The categorical Exclusions are attempting to Bypass the Assessment
of Impacts for the Issuance of Permits
Several commenters suggest that the Service, through its
categorical exclusions [sections 1.4C(1) and (2)], is attempting to
bypass the assessment of impacts from the issuance of permits for
endangered and threatened species, species listed under the Convention
on International Trade on Endangered Species of Wild Fauna and Flora
(CITES), marine mammals, exotic birds, migratory birds, eagles, and
injurious wildlife.
Although some ESA permits can be issued which involve the killing,
removal from natural habitat, or permanent impairment of reproductive
capability of species under this revised categorical exclusion, the
permit can be issued only if it poses no jeopardy to the species. To
ensure this standard, permits include appropriate minimization and
mitigation actions in the conditions of the permit. If these actions
are not feasible or the conditions are not acceptable to the applicant,
the permit application will be denied.
Under the categorical exclusion 1.4C(1) and (2), section
10(a)(1)(B) incidental takes permits and the preparation of
accompanying HCPs can now be categorically excluded if the expected
impacts are minor or negligible. This standard for ``low-effect'' HCPs
was not included under the previous categorical exclusions, where any
permit, for example, involving incidental take, required the
preparation of an EA or EIS. The previous language was a far more
rigorous standard than required under NEPA. For example, under the
previous procedures, incidental take of a listed species would require
the preparation of an EA or EIS even when the service established that
there was only a minor or negligible effect. The revised language is
consistent with NEPA in that the level of impact is the trigger for
determining when to prepare an EA or EIS, thus allowing the
implementation of a more flexible, efficient section 10(a)(1)(B) permit
program. Additional Service guidance on how to determine when a permit
proposal will be ``low-effect'' will be included in the final Section
10 Handbook.
For species listed under CITES, the Wild Bird Conservation Act, and
the Marine Mammal Protection Act, the Service carefully reviews
possible effects of the proposed activity on the wildlife before
issuing a permit. For species listed as injurious wildlife, the Service
reviews whether provisions are in place to ensure that wildlife cannot
escape and potentially harm native wildlife. The permit review process
includes consulting with appropriate State and Federal agencies and
species experts. The Services makes a decision to issue a permit only
after issuance criteria are met. These are specific to the provisions
of the law or treaty. For example, under CITES, the Service's Office of
Scientific Authority must make a finding that the import or export
would not be detrimental to the survival of the species. If the Service
anticipates that a permit may have an incidental environmental impact,
the Service would require the preparation of an EA or EIS.
Under the Migratory Bird Treaty Act (MBTA), the Service thoroughly
reviews and considers anticipated effects on migratory bird populations
before issuing a permit allowing the take of a protected species.
Permits are issued at the Regional level pursuant to regulations and
requirements (50 CFR 210 and are only issued after careful review by
the Region's Permit Review Committee. Like the MBTA, the Bald and
Golden Eagle Protection Act (BGEPA) prohibits the taking of bald and
golden eagles, except as otherwise permitted pursuant to regulations
(50 CFR 22.21 through 22.25). Under MBTA, BGEPA, and applicable
regulations, no permits can be issued for actions that would cause harm
to the species. If there are incidental impacts as a result of the
issuance of the proposed issuance of a permit that are or may be
significant, such permits would require the preparation of an EA or
EIS.
If any permit action, that normally would be categorically
excluded, meets one or more of the exceptions to the categorical
exclusion in 516 DM 2, Appendix 2, an EA or EIS is required. This
requirement is to ensure that proposals with significant impacts or
with impacts that may be significant undergo the NEPA documentation and
decisionmaking process.
[[Page 2379]]
The Habitat Conservation Plan Process Serves Essentially the Same
Purpose as the NEPA Process
One commenter suggested that the HCP process, authorized under
section 10(a)(1)(B) of the ESA, serves essentially the same purpose as
the NEPA analysis in an EA or EIS. We agree that there are some
similarities in the content of the HCP and the NEPA document, such as
the identification of alternative, evaluation of impacts, and public
review. However, some of these features can differ substantially,
depending on the proposal. For example, section 10(a)(1)(B) and
subsequent Service guidance limits the analysis of impacts in the HCP
to affected listed and proposed species by minimizing and mitigating
the incidental take of a listed species. The purpose of the HCP process
is to provide an incidental take permit to the applicant that
authorizes the incidental take of federally listed species in the
context of an HCP. The HCP specifies the impacts that will likely
result from the incidental taking, what steps the applicant will take
to minimize and mitigate such impacts, what alternative actions are not
being utilized, and such other measures as may be required by the
Service.
When considering the NEPA analysis as it relates to an incidental
take permit and the HCP, it is important to be precise about the nature
of the underlying action. The scope of the NEPA analysis covers the
direct, indirect, and cumulative effects of the proposed incidental
take and the mitigation and minimization measures proposed form the
implementation of the HCP. The specific scope of the NEPA analysis will
vary depending on the nature of the scope of activities described in
the HCP. In some cases, the anticipated environmental effects in the
NEPA documents that address the HCP may be confined to effects on
endangered species and other wildlife and plants, simply because there
are no other important effects. In many cases, the NEPA analysis will
focus on the effects of the minimization and mitigation actions on
other wildlife and plants and will examine any alternatives or
conservation strategies that might not otherwise have been considered.
In other cases, the minimization and mitigation activities proposed in
the HCP may affect a wider range of impacts analyzed under NEPA, such
as cultural resources and water use. It is important to keep in mind,
however, that the NEPA analysis for an HCP should be directed towards
analyzing direct, indirect, and cumulative effects that would be caused
by the approval of the HCP, that are reasonably foreseeable, and that
are potentially significant.
Refuge Actions Determined to be Compatible Would not be Subject to
Qualitative and Quantitative Evaluations
One commenter suggests that if the Service made a determination of
compatibility, that would be sufficient to qualify the issuance or
reissuance of refuge special use permit as a categorical exclusion,
thus avoiding any qualitative or quantitative assessment of impacts.
The categorical exclusion 1.4C(5) requires that three criteria be met
before a Refuge action requiring the issuance or reissuance of a permit
can apply: the use must be compatible, must contribute to the purposes
of the refuge, and result in no or negligible anticipated environmental
disturbances. The compatibility criteria is one of three that must be
met before this categorical exclusion can be used. This categorical
exclusion cannot be used unless it meets the requirements of both the
National Wildlife Refuge System Administration Act of 1966, as amended,
and NEPA (40 CFR 1508.4).
An EA or EIS Should be Prepared for the Preparation of Recovery
Plans
One commenter stated that the preparation of recovery plans should
require the preparation of an EA or EIS (section 1.4D). Another
commenter stated that recovery plans should not be categorically
excluded because the issue is currently in litigation. However, several
commenters also stated that recovery plans are not ``action''
documents, and therefore do not constitute a Federal action under NEPA.
The Service continues to consider recovery plans categorically excluded
under section 1.4B(8), as well as under 516 DM 2, Appendix 1.10.
Recovery plans are considered to be advisory in nature and provide
technical assistance. These plans merely provide planning strategies
and identify possible recovery actions and/or tasks that can be
implemented at a later time to help recover the species. The recovery
tasks identified in the plan are discretionary. The plans do not
authorize, fund, or implement a specific task. Through section 1003 of
the ESA amendments of 1988, the Secretary of the Interior provides the
public an opportunity to review and comment on draft recovery plans.
The NEPA process will be applied at the time specific tasks are
proposed to be implemented. The relationship of NEPA to recovery
planning will be clarified in revisions to the Service Recovery Manual.
The Service Should Maintain the Flexibility To Issue EAs and FONSIs
Without Public Review
One commenter stated that the language in section 1.5C indicates
that public review is required for an EA and that this is inconsistent
with CEQ's Regulations, which require review of the FONSI only when an
action is similar to one which normally requires an EIS or when the
nature of the action is without precedent [40 CFR 1501.4(e)(2)]. We
agree that this language is inconsistent and it is also somewhat
confusing. The language in section 1.5C has been revised to indicate
that it is not the EA/FONSI, but the notice of intent to prepare an EIS
that is to be made available to the affected public when an EA
determines that the proposal is a major Federal action significantly
affecting the quality of the human environment.
Although CEQ's Regulations do not normally require public review of
EAs, such review is encouraged. The Service routinely involves the
public in the review of EAs in conjunction with HCPs. The ESA requires
the Service to publish a Notice, called the Notice of Receipt, when a
HCP permit application is received. The final Section 10 Handbook will
provide guidance encouraging Service personnel to publish a joint
notification of the permit application, HCP, and the EA for public
review. In practice, the Service normally provides the public an
opportunity to review the EA along with the HCP to facilitate the
planning and implementation of the incidental take permit.
Designation of Critical Habitat Should Require the Preparation of
an EIS
One commenter stated that the designation of critical habitat
should require the preparation of an EIS. The Department's NEPA
procedures do not specifically state that the designation of critical
habitat is categorically excluded. The Service has maintained that
these designations are exempt from NEPA and therefore, do not require
the preparation of an EA or EIS in conjunction with regulations adopted
pursuant to section 4(a) of the ESA, as amended. A notice outlining the
Service's reason was published in the Federal Register on October 25,
1983 (48 FR 49244). As the commenter notes, two Federal Circuit Courts
have disagreed on this issue (9th and 10th Circuits). Pending
resolution of this issue by the Courts, the Service will not prepare
environmental documents in the 9th Circuit or in other parts of the
United States, consistent with our current position, but the
[[Page 2380]]
Service will prepare EAs for any designations proposed in areas subject
to the 10th Circuit. This admittedly inconsistent approach to the
application of NEPA for the designation of critical habitat will likely
continue until resolved by the Courts.
Departmental Manual
516 DM 6 Appendix 1
Fish and Wildlife Service
1.1 NEPA Responsibility
A. The Director is responsible for NEPA compliance for Fish and
Wildlife Service (Service) activities, including approving
recommendations to the Assistant Secretary (FW) for proposed referrals
to the Council on Environmental Quality (CEQ) of other agency actions
under 40 CFR 1504.
B. Each Assistant Director (Refuges and Wildlife, Fisheries,
International Affairs, External Affairs, and Ecological Services) is
responsible for general guidance and compliance in their respective
areas of responsibility.
C. The Assistant Director for Ecological Services has been
delegated oversight responsibility for Service NEPA compliance.
D. The Division of Habitat Conservation (DHC--Washington), which
reports to the Assistant Director for Ecological Services, is
responsible for internal control of the environmental review and
analysis of documents prepared by other agencies and environmental
statements prepared by the various Service Divisions. This office is
also responsible for preparing Service NEPA procedures, guidelines, and
instructions, and for supplying technical assistance and specialized
training in NEPA compliance, in cooperation with the Service Office of
Training and Education, to Service entities. The Washington Office
Environmental Coordinator, who reports to DHC, provides staff
assistance on NEPA matters to the Director, Assistant Directors, and
their divisions and offices, and serves as the Service NEPA liaison to
the CEQ, the Department's Office of Environmental Policy and Compliance
(OEPC), and NEPA liaisons in other Federal agencies, in accordance with
516 DM 6.2.
E. Each Regional Director is responsible for NEPA compliance in
his/her area of responsibility. The Regional Director should ensure
that Service decisionmakers in his/her area of responsibility contact
affected Federal agencies and State, Tribal and local governments when
initiating an action subject to an EA or EIS. An individual in each
Regional Office, named by title and reporting to the Assistant Regional
Director for Ecological Services, other appropriate Assistant Regional
Director, or the Regional Director, will have NEPA coordination duties
with all program areas at the Regional level similar to those of the
Washington Office Environmental Coordinator, in accordance with 516 DM
6.2.
1.2 General Service Guidance
Service guidance on internal NEPA matters is found in 30 AM 2-3
(organizational structure and internal NEPA compliance), 550 FW1-3 (in
preparation), 550 FW 3 (documenting and implementing Service decisions
on Service actions), and 550 FW 1-2 (replacement to 30 AM 2-3 in
preparation). These guidance documents encourage Service participation
as a cooperating agency with other Federal agencies, encourage early
coordination with other agencies and the public to resolve issues in a
timely manner, and provide techniques for streamlining the NEPA process
and integrating the NEPA process with other Service programs,
environmental laws, and executive orders. Some Service programs have
additional NEPA compliance information related to specific program
planning and decisionmaking activities. Service program guidance on
NEPA matters must be consistent with the Service Manual on NEPA
guidance and Departmental NEPA procedures. For example, additional NEPA
guidance is found in the Federal Aid Handbook (521-523 FW), refuge
planning guidance (602 FW 1-3), Handbook for Habitat Conservation
Planning and Incidental Take Processing, and North American Wetlands
Conservation Act Grant Application Instructions.
1.3 Guidance to Applicants
A. Service Permits. The Service has responsibility for issuing
permits to Federal and State agencies and private parties for actions
which would involve certain wildlife species and/or use of Service-
administered lands. When applicable, the Service may require permit
applicants to provide additional information on the proposal and on its
environmental effects as may be necessary to satisfy the Service's
requirements to comply with NEPA, other Federal laws, and executive
orders.
(1) Permits for the Taking, Possession, Transportation, Sale,
Purchase, Barter, Exportation, or Importation of Certain Wildlife
Species. The Code of Federal Regulations, Part 13, Title 50 (50 CFR 13)
contains regulations for General Permit Procedures. Section 13.3 lists
types of permits and the pertinent Parts of 50 CFR. These include:
Importation, Exportation, and Transportation of Wildlife (Part 14);
Exotic Wild Bird Conservation (Part 15); Injurious Wildlife (Part 16);
Endangered and Threatened Wildlife and Plants (Part 17); Marine Mammals
(Part 18); Migratory Bird Hunting (Part 20); Migratory Bird Permits
(Part 21); Eagle Permits (Part 22); Endangered Species Convention (Part
23); and Importation and Exportation of Plants (Part 24). Potential
permit applicants should request information from the appropriate
Regional Director, or the Office of Management Authority, U.S. Fish and
Wildlife Service, Department of the Interior, Washington, DC 20240, as
outlined in the applicable regulation.
(2) Federal Lands Managed by the Service. Service lands are
administered under the National Wildlife Refuge System Administration
Act of 1966 (16 U.S.C. 668dd-668ee), the Refuge Recreation Act of 1962
(16 U.S.C. 460k-460k-4), and the Alaska National Interest Lands
Conservation Act of 1980 (16 U.S.C. 410hh-3233, 43 U.S.C. 1602-1784).
inherent in these acts is the requirement that only those uses that are
compatible with the purposes of the refuge system unit may be allowed
on Service lands. The Service also complies with Executive Order 12996,
signed March 25, 1996, entitled ``Management and General Public Use of
the National Wildlife Refuge System.'' This Executive Order identifies
general public uses that will be given priority consideration in refuge
planning and management, subject to meeting the compatibility
requirement and if adequate funding is available to administer the use.
Detailed procedures regarding comprehensive management planning and
integration with NEPA are found in the Service Manual (602 FW 1-3).
Reference to this and other National Wildlife Refuge System
requirements are found in the Code of Federal Regulations, Title 50
parts 25-29, 31-36, 60, and 70-71. Under these regulations, these
protections are extended to all Service-administered lands, including
the National Fish Hatchery System.
B. Federal Assistance to States, Local or Private Entities.
(1) Federal Assistance Programs. The Service administers financial
assistance (grants and/or cooperative agreements) to State, local, and
private entities under the Anadromous Fish Conservation Act (CFDA
#15.600); North American Wetlands Conservation Act; Fish and Wildlife
Act of 1956; Migratory Bird Conservation Act; Food Security Act of
[[Page 2381]]
1985; Food, Agriculture, Conservation and Trade Act of 1990;
Partnerships for Wildlife Act of 1992; and Consolidated Farm and Rural
Development Act. The Service administers financial assistance to States
under the Sport Fish Restoration Act (CFDA #15.605), Wildlife
Restoration Act (CFDA #15.611), Endangered Species Act (CFDA #15.612
and 15.615), Coastal Wetlands Planning Protection and Restoration Act
(CFDA #15.614), and Clean Vessel Act of 1992 (CFDA #15.616).
(2) Program Information and NEPA Compliance. Information on how
State, local, and private entities may request funds and assist the
Service in NEPA compliance relative to the Anadromous Fish Conservation
Act may be obtained through the Division of Fish and Wildlife
Management Assistance, U.S. Fish and Wildlife Service, Department of
the Interior, Arlington Square Building, Room 840, Washington, D.C.
20240. Similar information regarding the North American Wetlands
Conservation Act may be obtained through the North American Waterfowl
and Wetlands Office. U.S. Fish and Wildlife Service, Department of the
Interior, Arlington Square Building, Room 110, Washington, D.C. 20240.
All other requests for information on how funds may be obtained and
guidance on how to assist the Service in NEPA compliance may be
obtained through the Chief, Division of Federal Aid, U.S. Fish and
Wildlife Service, Department of the Interior, Arlington Square
Building, Room 140, Washington, D.C. 20240.
1.4 Categorical Exclusions
Categorical exclusions are classes of actions which do not
individually or cumulatively have a significant effect on the human
environment. Categorical exclusions are not the equivalent of statutory
exemptions. If exceptions to categorical exclusions apply, under 516 DM
2, Appendix 2 of the Departmental Manual, the departmental categorical
exclusions cannot be used. In addition to the actions listed in the
departmental categorical exclusions outlined in Appendix 1 of 516 DM 2,
the following Service actions are designated categorical exclusions
unless the action is an exception to the categorical exclusion.
A. General.
(1) Changes or amendments to an approved action when such changes
have no or minor potential environmental impact.
(2) Personnel training, environmental interpretation, public safety
efforts, and other educational activities, which do not involve new
construction or major additions to existing facilities.
(3) The issuance and modification of procedures, including manuals,
orders, guidelines, and field instructions, when the impacts are
limited to administrative effects.
(4) The acquisition of real property obtained either through
discretionary acts or when acquired by law, whether by way of
condemnation, donation, escheat, right-of-entry, escrow, exchange,
lapses, purchase, or transfer and that will be under the jurisdiction
or control of the United States. Such acquisition of real property
shall be in accordance with 602 DM 2 and the Service's procedures, when
the acquisition is from a willing seller, continuance of or minor
modification to the existing land use is planned, and the acquisition
planning process has been performed in coordination with the affected
public.
B. Resource Management. Prior to carrying out these actions, the
Service should coordinate with affected Federal agencies and State,
Tribal, and local governments.
(1) Research, inventory, and information collection activities
directly related to the conservation of fish and wildlife resources
which involve negligible animal mortality or habitat destruction, no
introduction of contaminants, or no introduction of organisms not
indigenous to the affected ecosystem.
(2) The operation, maintenance, and management of existing
facilities and routine recurring management activities and
improvements, including renovations and replacements which result in no
or only minor changes in the use, and have no or negligible
environmental effects on-site or in the vicinity of the site.
(3) The construction of new, or the addition of, small structures
or improvements, including structures and improvements for the
restoration of wetland, riparian, instream, or native habitats, which
result in no or only minor changes in the use of the affected local
area. The following are examples of activities that may be included.
i. The installation of fences.
ii. The construction of small water control structures.
iii. The planting of seeds or seedlings and other minor
revegetation actions.
iv. The construction of small berms or dikes.
v. The development of limited access for routine maintenance and
management purposes.
(4) The use of prescribed burning for habitat improvement purposes,
when conducted in accordance with local and State ordinances and laws.
(5) Fire management activities, including prevention and
restoration measures, when conducted in accordance with departmental
and Service procedures.
(6) The reintroduction or supplementation (e.g., stocking) of
native, formerly native, or established species into suitable habitat
within their historic or established range, where no or negligible
environmental disturbances are anticipated.
(7) Minor changes in the amounts or types of public use on Service
or State-managed lands, in accordance with existing regulations,
management plans, and procedures.
(8) Consultation and technical assistance activities directly
related to the conservation of fish and wildlife resources.
(9) Minor changes in existing master plans, comprehensive
conservation plans, or operations, when no or minor effects are
anticipated. Examples could include minor changes in the type and
location of compatible public use activities and land management
practices.
(10) The issuance of new or revised site, unit, or activity-
specific management plans for public use, land use, or other management
activities when only minor changes are planned. Examples could include
an amended public use plan or fire management plan.
(11) Natural resource damage assessment restoration plans, prepared
under sections 107, 111, and 122(j) of the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA); section 311(f)(4) of
the Clean Water Act; and the Oil Pollution Act; when only minor or
negligible change in the use of the affected areas is planned.
C. Permit and Regulatory Functions.
(1) The issuance, denial, suspension, and revocation of permits for
activities involving fish, wildlife, or plants regulated under 50 CFR
Chapter 1, Subsection B, when such permits cause no or negligible
environmental disturbance. These permits involve endangered and
threatened species, species listed under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), marine mammals, exotic birds, migratory birds, eagles, and
injurious wildlife.
(2) The issuance of ESA section 10(a)(1)(B) ``low-effect''
incidental take permits that, individually or cumulatively, have a
minor or negligible
[[Page 2382]]
effect on the species covered in the habitat conservation plan.
(3) The issuance of special regulations for public use of Service-
managed land, which maintain essentially the permitted level of use and
do not continue a level of use that has resulted in adverse
environmental effects.
(4) The issuance or reissuance of permits for limited additional
use of an existing right-of-way for underground or above ground power,
telephone, or pipelines, where no new structures (i.e., facilities) or
major improvement to those facilities are required; and for permitting
a new right-of-way, where no or negligible environmental disturbances
are anticipated.
(5) The issuance or reissuance of special use permits for the
administration of specialized uses, including agricultural uses, or
other economic uses for management purposes, when such uses are
compatible, contribute to the purposes of the refuge system unit, and
result in no or negligible environmental effects.
(6) The denial of special use permit applications, either initially
or when permits are reviewed for renewal, when the proposed action is
determined not compatible with the purposes of the refuge system unit.
(7) Activities directly related to the enforcement of fish and
wildlife laws, not included in 516 DM 2, Appendix 1.4. These activities
include:
(a) Assessment of civil penalties.
(b) Forfeiture of property seized or subject to forfeiture.
(C) The issuance or reissuance of rules, procedures, standards, and
permits for the designation of ports, inspection, clearance, marking,
and license requirements pertaining to wildlife and wildlife products,
and for the humane and healthful transportation of wildlife.
(8) Actions where the Service has concurrence or coapproval with
another agency and the action is a categorical exclusion for that
agency. This would normally involve one Federal action or connected
actions where the Service is a cooperating agency.
D. Recovery Plans.
Issuance of recovery plans under section 4(f) of the ESA.
E. Financial Assistance.
(1) State, local, or private financial assistance (grants and/or
cooperative agreements), including State planning grants and private
land restorations, where the environmental effects are minor or
negligible.
(2) Grants for categorically excluded actions in paragraphs A, B,
and C, above; and categorically excluded actions in Appendix 1 of 516
DM 2.
1.5 Actions Normally Requiring an EA
A. Proposals to establish most new refuges and fish hatcheries; and
most additions and rehabilitations to existing installations.
B. Any habitat conservation plan that does not meet the definition
of ``low-effect'' in the Section 10(a)(1)(B) Handbook.
C. If, for any of the above proposals, the EA determines that the
proposal is a major Federal action significantly affecting the quality
of the human environment, an EIS will be prepared. The determination to
prepare an EIS will be made by a notice of intent in the Federal
Register and by other appropriate means to notify the affected public.
1.6 Major Actions Normally Requiring an EIS
A. The following Service proposals, when determined to be a major
Federal action significantly affecting the quality of the human
environment, will normally require the preparation of an EIS.
(1) Major proposals establishing new refuge system units, fish
hatcheries, or major additions to existing installations, which involve
substantive conflicts over existing State and local land use,
significant controversy over the environmental effects of the proposal,
or the remediation of major on-site sources of contamination.
(2) Master or comprehensive conservation plans for major new
installations, or for established installations, where major new
developments or substantial changes in management practices are
proposed.
B. If, for any of the above proposals it is initially determined
that the proposal is not a major Federal action significantly affecting
the quality of the human environment, an EA will be prepared and
handled in accordance with 40 CFR 1501.4(e)(2). If the EA subsequently
indicates the proposed action will cause significant impacts, an EIS
will be prepared.
Dated: January 13, 1997.
Willie Taylor,
Director, Office of Environmental Policy and Compliance, Office of the
Secretary, U.S. Department of the Interior.
[FR Doc. 97-1071 Filed 11-15-97; 8:45 am]
BILLING CODE 4310-55-M
