[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37865-37875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17991]
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 651
Environmental Analysis of Army Actions
AGENCY: Department of the Army; Defense.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would revise Army Regulation 200-2, which
is the Army's implementing regulation for the National Environmental
Policy Act of 1969 (NEPA). Major changes are an expanded list of
categorical exclusions, clear separation of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) and
NEPA, and delegation of authority to approve environmental impact
statements (EIS).
DATES: To be given full consideration, comments must be received no
later than August 21, 1996.
ADDRESSES: Written comments should be sent to: Headquarters, Department
of the Army, ATTN: DAIM-ED (Mr. Timothy Julius), 600 Army Pentagon,
Washington, DC 20310-0600.
FOR FURTHER INFORMATION CONTACT: Timothy P. Julius, (703) 693-0543.
SUPPLEMENTARY INFORMATION: This proposed regulation establishes
policies and responsibilities for assessing the effects of Army
actions. It supplements Council on Environmental Quality (CEQ)
regulations for implementing the procedural provisions of NEPA (40 CFR
parts 1500-1508). The last major revision to this regulation was in
December 1988. Since that time, initiatives such as the National
Performance Review have tended to streamline the Federal Government
through decentralization, reduction and simplification of regulations,
and management of risk. This revision strives to meet the spirit of the
National Performance Review, and Executive Order (EO) 12861,
Elimination of One-Half of Executive Branch Internal Regulations, dated
September 11, 1993. This proposed regulation incorporates emerging
issues such as Environmental Justice (EO 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, dated February 11, 1994) and Community Right-to-Know (EO
12856, Federal Compliance with Right-to-Know Laws and Pollution
Prevention Requirements, dated August 3, 1993). The list of categorical
exclusions has been expanded to include a more comprehensive array of
actions routinely performed by the Army which have minimal or no
individual or cumulative effect on environmental quality. This is
intended to better focus on actions that warrant the expenditure of
time and resources for analysis and formal documentation. The authority
to approve environmental impact statements has been delegated to
Commanders of Major Commands (primarily for Installations), and Program
Executive Officers and Commanders of Major Subordinate Commands with
Milestone Decision Authority (for acquisition and development
programs). The purpose of delegation of approval authority for EISs is
to empower the officials who are responsible for accomplishing the
work. This empowerment will compel the decision makers to take more
complete ownership of their actions, and makes the NEPA process an
integral, rational part of Army decision making processes. CERCLA and
NEPA are clearly separated in recognition of the Department of
Justice's opinion with regard to the application of NEPA to CERCLA
cleanups, and to eliminate potential duplication of effort. Procedural
Requirements: This regulation does not involve the collection of
information and is therefore not subject to the provisions of the
Paperwork Reduction Act. This rule contains no policies that have
Federalism implications under EO 12612, Federalism, dated October 26,
1987. This proposed rule is not a major rule pursuant to EO 12291,
Federal Regulation, dated February 17, 1981, therefore a Regulatory
Flexibility Analysis is not require(d) This is not a significant
regulatory action pursuant to EO 12866, Regulatory Planning and Review,
dated September 30, 1993. This regulation meets the standards of Sec.
2(b)(2) of EO 12778, Civil Justice Reform, dated October 23, 1991.
List of Subjects in 32 CFR Part 651
Environmental impact statement, Environmental protection, Natural
resources.
[[Page 37866]]
The Proposal
Accordingly, it is proposed to revise 32 CFR part 651 to read as
follows:
PART 651-ENVIRONMENTAL EFFECTS OF ARMY ACTIONS (AR 200-2)
Sec.
Subpart A--Introduction
651.1 Applicability.
651.2 Purpose.
651.3 Definitions.
651.4 Responsibilities.
651.5 Policies.
Subpart B-National Environmental Policy Act of 1969 (NEPA) and the
Decision Processes
651.6 Introduction.
651.7 Actions Requiring Evaluation.
651.8 Exemptions, Exceptions, and Emergency Procedures.
651.9 Integration with Army Planning.
651.10 Classified Actions.
Subpart C-Required Records and Documents
651.11 Environmental Assessment (EA).
651.12 Finding of No Significant Impact (FONSI).
651.13 Notice of Intent (NOI).
651.14 Environmental Impact Statement (EIS).
651.15 Record of Decision (ROD).
651.16 Notice of Availability (NOA).
651.17 Notice of Availability of Weekly Receipts of EISs (NWR).
651.18 Record of Environmental Consideration (REC).
Part D--Categorical Exclusions (CXs)
651.19 General.
651.20 Determining when to use a CX.
651.21 List of Categorical Exclusions (CXs).
Part E--Environmental Assessment (EAs)
651.22 Conditions and Actions Normally Requiring an EA.
651.23 EA Format.
651.24 Finding of No Significant Impact (FONSI).
651.25 Review and Approval of EAs and FONSIs.
651.26 Public Involvement.
651.27 Mitigation and Implementation Plan.
Part F--Environmental Impact Statements (EISs)
651.28 Introduction.
651.29 Conditions Requiring an EIS.
651.30 Actions Normally Requiring an EIS.
651.31 EIS Format.
651.32 Approval Authority.
651.33 Notice of Intent (NOI).
651.34 Scoping.
651.35 Preparation and Processing of the Draft Environment Impact
Statement (DEIS).
651.36 Public Review of the DEIS.
651.37 Preparation of the Final Environmental Impact Statement
(FEIS).
651.38 Decision.
651.39 Supplemental EISs (SEISs).
651.40 The Army as a Cooperating Agency.
Authority: National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321 et seq. Council on Environmental Quality Regulations, 40
CFR part 1500-1508, 43 FR 55978-56007, November 29, 1978, as amended
at 51 FR 15625, April 25, 1986, and Executive Orders 11988, 11990,
12114, 12856, 12898.
Subpart A--Introduction
Sec. 651.1 Applicability.
This regulation applies to pertinent functions of the Active Army
and Army Reserve, to functions of the Army National Guard (ARNG)
involving Federal funding, and to functions for which the Army is the
DoD executive agent. It does not apply to Civil Works functions. This
regulation applies to relevant actions within the United States, which
is defined as all States, the District of Columbia, territories, and
possessions of the United States; and all waters and airspace subject
to the territorial jurisdiction of the United States. The territories
and possessions of the United States include the Virgin Islands,
American Samoa, Wake Island, Midway Island, Guam, Palmyra Island,
Johnston Atoll, Navassa Island, and Kingman Reef. This regulation also
applies to actions in the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Marianas, and the Republic of the Marshall Islands.
Sec. 651.2 Purpose.
(a) Environmental Analysis of Army Actions is the Army's
implementing regulation for the National Environmental Policy Act of
1969 (NEPA). This regulation sets forth the Army's policies and
responsibilities for the early integration of environmental
considerations into Army planning and decision making processes.
(b) This regulation establishes criteria to determine which Army
actions normally require preparation of an Environmental Assessment
(EA) or an Environmental Impact Statement (EIS), and lists Army actions
that are categorically excluded from the requirements to prepare an EA
or EIS.
(c) This regulation supplements the Code of Federal Regulations (40
CFR parts 1500-1508), and must be read in conjunction with it.
Sec. 651.3 Definitions.
(a) Proponent. The proponent is the Army office, DoD or non-DoD
Federal agency, state or local agency, organization, or individual that
proposes an action requiring Army approval.
(b) Decision maker. The decision maker is the Army official who has
the primary authority to approve NEPA documents, make decisions, and
commit government resources to a course of action.
(c) Program, Product, and Project Managers. Managers of Acquisition
Categories (ACAT) I, II, III, & IV programs as defined by Department of
Defense Instruction (DoDI) 5000.2.
(d) Major Decision Point. Review points in the development of a
project/program at which decisions are made whether to proceed. For the
acquisition process, these would be the major milestones as defined in
DoD Instruction 5000.2.
Sec. 651.4 Responsibilities.
(a) The Secretary of the Army (SA) has designated the Assistant
Secretary of the Army (Installations, Logistics and Environment)
(ASA(IL&E)) as the Army's responsible official for NEPA matters.
(b) The Assistant Secretary of the Army (Research, Development, and
Acquisition) will:
(1) In conjunction with the Assistant Secretary of the Army
(Installations, Logistics, and Environment), manage the environmental
compliance of materiel systems.
(2) Develop and implement a process to prepare, review, approve,
and catalog NEPA documents for the acquisition and development of Army
materiel.
(c) The Deputy Chief of Staff for Operations and Plans (DCSOPS)
will assign proponent responsibilities as required when multiple MACOM
or Headquarters offices are involved in a proposal.
(d) The Assistant Chief of Staff for Installation Management
(ACSIM) is responsible for coordinating and monitoring NEPA activities
within the Army. The Environmental Programs Directorate is the Army
Staff (ARSTAF) point of contact (POC) for environmental matters.
(e) The Director of Environmental Programs will--
(1) Assist Army agencies in completing environmental analysis and
documentation.
(2) Review, as requested, environmental documents submitted by
Army, other DoD components, and other Federal agencies.
(3) Monitor proposed Army policy and program documents that have
environmental implications to determine compliance with NEPA
requirements and to ensure integration of environmental considerations
into the decision making process.
(4) Maintain liaison with the Office of the Secretary of Defense,
Office of Management and Budget, Council on
[[Page 37867]]
Environmental Quality (CEQ), Environmental Protection Agency (EPA), and
other Federal, state, and local agencies on environmental policies that
may affect the Army. This liaison assists in identifying and evaluating
applicable regulatory policies for proposed actions.
(f) The Assistant Secretary of the Army (Financial Management) will
develop requirements for environmental budget exhibits and displays of
data in support of annual authorization and appropriation requests.
(g) The General Counsel (GC) provides legal advice to the Secretary
of the Army on all environmental matters, to include interpretation and
compliance with NEPA and implementing regulations.
(h) The Judge Advocate General (TJAG) will provide legal advice and
assistance in interpretation of NEPA and Federal implementing
regulations, and other applicable statutes.
(i) The Surgeon General will review, as requested, the health and
welfare aspects of proposals.
(j) The Chief of Public Affairs will:
(1) Provide guidance on issuing public announcements such as
Findings of No Significant Impact (FONSI), Notices of Intent (NOI),
scoping procedures, Notices of Availability (NOA), and other public
involvement activities.
(2) Review and coordinate planned announcements on actions of
national interest with appropriate ARSTAF elements and the Assistant
Secretary of Defense for Public Affairs (OASD (PA)).
(3) Assist in the issuance of appropriate press releases to
coincide with the publication of notices in the Federal Register.
(k) The Chief of Legislative Liaison will notify members of
Congress of impending proposed actions of national concern or interest.
The Chief will--
(1) Provide guidance on issuing congressional notifications on
actions of national concern or interest.
(2) Review planned congressional notifications on actions of
national concern or interest.
(3) Prior to and in concert with the issuance of press releases and
publications in the Federal Register, assist in the issuance of
congressional notifications on actions of national concern or interest.
(l) Commanders of Major Army Commands (MACOM), the Chief, National
Guard Bureau, and the U.S. Army Reserve Commander will--
(1) Monitor proposed actions and programs within their commands to
ensure compliance with this regulation.
(2) Task the appropriate proponent with funding and preparation of
NEPA documents and development of public involvement activities.
(3) Ensure that the proponent initiates the preparation of
necessary environmental documentation and assesses the environmental
consequences of proposed programs and projects early in the planning
process.
(4) Assist in the review of environmental documents prepared by DoD
and other Army or Federal agencies, as requested.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Maintain official record copies of all environmental documents
for which they are the staff proponent.
(7) Provide coordination with HQDA for proposed actions of national
interest.
(8) Approve environmental impact statements and associated
documents (NOI, NOA, ROD) for actions under their purview.
(9) Office of the Chief of the National Guard Bureau is responsible
for approving all Federal environmental documents prepared by all Army
National Guard activities.
(m) Major Subordinate Commands, Installations (Base Operations
(BASEOPS) Army Reserve Command (ARCOM), activity (facility), unit (non-
BASEOPS Major U.S. Army Reserve Command (MUSARC) commanders and The
Adjutants General (TAG) will:
(1) Monitor proposed actions and programs within their commands to
ensure compliance with this regulation.
(2) Task the appropriate proponent with funding and preparation of
NEPA documents and development of public involvement activities.
(3) Ensure that the proponent initiates the preparation of
necessary environmental documentation and assesses the environmental
consequences of proposed programs and projects early in the planning
process.
(4) Assist in the review of environmental documents prepared by DoD
and other Army or Federal agencies, as requested.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Maintain official record copies of all environmental documents
for which they are the staff proponent.
(7) Provide coordination for proposed actions of national interest.
(8) Approve environmental documents for actions under their purview
(does not include TAG).
(n) The Army Acquisition Executive (AAE) will:
(1) Administer acquisition programs to ensure compliance with all
applicable environmental laws, executive orders, and regulations.
(2) Ensure that life cycle environmental costs are an integral part
of system life cycle cost estimates.
(o) Program Executive Officers (PEO) and direct-reporting PMs will:
(1) Supervise assigned programs, projects, and products to ensure
that they comply with all applicable environmental laws, executive
orders, and regulations.
(2) Ensure that environmental considerations are integrated into
assigned systems planning process and systems engineering process.
(3) Approve environmental impact statements and associated
documents (NOI, NOA, ROD) for actions under their purview.
(p) Program, Project, and Product Managers will:
(1) Manage compliance with all applicable environmental laws,
executive orders, and regulations for assigned programs, projects, and
products.
(2) Integrate environmental considerations into the systems
planning process and systems engineering process.
(3) Apply policies and procedures set forth in this regulation to
programs and actions within their organizations and staff
responsibility.
(4) Initiate the preparation of environmental documentation and
assess the environmental consequences of proposed programs and
projects.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Prepare and maintain the official record copy of all
environmental documents for which they are the proponent.
(q) Proponents at all levels will:
(1) Ensure that NEPA documents are prepared and staffed to the
satisfaction of the decision maker.
(2) Ensure accuracy and adequacy of environmental impact analyses
and documents regardless of the author.
(3) Adequately fund and implement the decision.
Sec. 651.5 Policies
(a) DA policy is to balance military mission activities, including
materials and industrial processes, with the capabilities of the
installations and surrounding communities. Decision makers will be
cognizant of the impact of their decisions upon the environment, and
will reduce undue and unnecessary adverse impacts to the extent
feasible.
(b) When appropriate, environmental documentation to consider
operations
[[Page 37868]]
security principles and procedures described in AR 530-1 will be
reviewed and documented on the cover sheet or signature page.
(c) Environmental analyses and associated investigations are
advanced project planning, and will be funded from other than military
construction (MILCON) funds. Operations and Maintenance/Operation and
Maintenance, ARNG (OMA/OMAR), Research, Development, Test, and
Evaluation (RDTE) or other operating funds are the proper sources of
funds for analysis and documentation. Alternative funds will be
identified for environmental documentation, monitoring, and other
required studies as part of the MILCON approval process.
(d) Costs of design and construction mitigation measures required
as a direct result of MILCON projects will be paid from MILCON funds if
included in the cost estimate and description of work on DD Form 1391.
(e) Ongoing Army activities require an environmental analysis when
significant new circumstances warrant consideration of changing the
activity. For example, the listing of a new species as endangered may
indicate, per consultation under the Endangered Species Act, the
modification of a training regime or major modification of an existing
weapons system.
(f) Environmental analyses will reflect due consideration of non-
statutory environmental issues implemented by Federal and DoD plans and
standards. Potential issues will be discussed and critically evaluated
during scoping and other public involvement processes. Some examples
are the issues articulated in Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations; and Executive Order 12856, Federal Compliance with Right-
to-Know Laws and Pollution Prevention Requirements.
(g) Consideration of the environment for decisions involving
activities outside the United States (see Applicability) will be
accomplished pursuant to Executive Order No. 12114, host country final
governing standards, and DoD Directives and Instructions.
Subpart B--The National Environmental Policy Act of 1969 (NEPA) and
Decision Processes
Sec. 651.6 Introduction.
(a) NEPA establishes broad Federal policies and goals for the
protection of the environment. Section 102(2) contains procedural
requirements directed toward the attainment of such goals.
(b) The NEPA process is the systematic examination of probable
environmental consequences of implementing a proposed action and
reasonable alternatives. To be effective, integration of the NEPA
process with other Army project planning will occur at the earliest
possible time to ensure that:
(1) Planning and decision making reflect environmental values.
(2) Policies listed in paragraph 1-5 are implemented.
(3) Delays and potential conflicts in the process are minimized.
(4) Evaluation of environmental effects, values and issues is in
sufficient detail for consideration concurrently with economic,
technical, and mission-related analyses. When EISs are undertaken, the
economic and social impacts will be included in the analysis of total
environmental impacts. However, economic and social impacts alone
(i.e., without accompanying natural or physical impacts) do not
necessitate the preparation of an environmental document for an Army
action.
Sec. 651.7 Actions requiring evaluation.
The general types of proposed actions to evaluate for environmental
impact include:
(a) Management and operational concepts and programs, including
such areas as logistics, research, development, test and evaluation,
procurement, and real property and facility management.
(b) Projects, including facilities construction, research and
development for weapons, vehicles, and other equipment or activities.
(c) Operations, including individual and unit training, flight
operations, overall operation of installation, or facility test and
evaluation programs.
(d) Licenses for operations or special material use, including
Nuclear Regulatory Commission (NRC) license, an Army radiation
authorization, or Federal Aviation Administration (FAA) Air Space
request.
(e) Materiel development, acquisition, and/or transition.
(f) Research and development, including such areas as genetic
engineering, laser testing, and electromagnetic pulse generation.
(g) Actions supported through Federal contracts, grants, subsidies,
loans, or other forms of funding such as Government Owned-Contractor
Operated (GOCO) industrial plants and construction of family housing
via third party contracting (Section 801/802 Housing, Military
Appropriations Act of 1984).
(h) Leases, easements, permits, licenses, certificates, or other
entitlement for use.
(i) Environmental Remediation/Restoration projects not addressed in
paragraph 2-3(b) below.
Sec. 651.8 Exemptions, exceptions, and emergency procedures.
(a) Exemption by Law. The law must apply to DoD and/or Army and
must prohibit, exempt, or make impossible full compliance with the
procedures of NEPA (40 CFR 1500.6).
(b) Environmental Remediation/Restoration projects implemented in
accordance with the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) shall not be assessed under NEPA.
(c) Emergencies.
(1) In the event of an emergency, the Army may be required to take
immediate actions that have environmental impacts. These immediate
actions are necessary to promote national defense or security, or to
protect life or property. In such cases, the HQDA proponent will notify
the Environmental Programs Directorate, which in turn will notify the
Assistant Secretary of the Army for Installations, Logistics and
Environment (ASA (I,L&E)), who will coordinate with the Deputy Under
Secretary of Defense (Environmental Security) (DUSD(ES)) and CEQ
regarding actions necessary to control the immediate effects of the
emergency. In no event will the Army delay an emergency action
necessary for national defense, security, or preservation of human life
or property to comply with this regulation or the CEQ Regulations.
Call-ups of the ARNG during state emergencies are state actions
excluded from the requirements of this regulation.
(2) These notifications and consultations apply only to actions
necessary to control immediate effects of the emergency; other actions
remain subject to NEPA review (40 CFR 1506.11).
Sec. 651.9 Integration with Army Planning.
(a) Environmental considerations will be integrated into the Army's
decision making processes to ensure that:
(1) The planning process identifies major decision points for
principal programs and proposals that are likely to have an effect on
the environment.
(2) Decision makers are informed of and consider the environmental
consequences at the same time as other factors such as mission
requirements and cost.
[[Page 37869]]
(3) Environmental documents accompany the proposal through the
existing Army review and decision making processes. The Army will
integrate NEPA requirements with other planning and environmental
review procedures.
(4) The alternatives considered in the decision are within the
range of alternatives analyzed in relevant environmental documents.
(b) Proponents are responsible for providing funds for NEPA
documentation, and for implementation of decisions including
mitigations (regardless of the level of NEPA analysis).
(c) The Army acquisition community will integrate environmental
analyses into its decision making process and will further ensure that
appropriate environmental life cycle costs become an integral part of
total program cost estimates and budgets. PEOs, and Program, Product,
and Project Managers will integrate the NEPA process along with other
program planning at the earliest possible time to ensure that
acquisition planning and decisions reflect environmental values and
considerations. During the planning process, materiel acquisition
proponents will, as early as possible, determine the type of
environmental analyses that will be required throughout the life cycle
of their assigned program and identify appropriate funding.
Sec. 651.10 Classified actions.
(a) For proposed actions and environmental documents involving
classified information, AR 380-5 will be followed.
(b) Classification does not relieve a proponent of the requirement
to assess and document the environmental effects of a proposed action.
(c) For cases where classified information can be reasonably
separated from other information, and a meaningful environmental
analysis produced, unclassified documents will be prepared and
processed in accordance with this regulation. Classified portions will
be kept separate and provided to reviewers and decision makers in
accordance with AR 380-5.
(d) For cases where classified information is such an integral part
of the analysis of a proposal that a meaningful unclassified
environmental document cannot be produced, the proponent, in
consultation with the appropriate security and environmental offices,
will form a team to review classified environmental documents.
Subpart C--Army NEPA and NEPA-Related Documents
Sec. 651.11 Environmental Assessment (EA).
The EA provides the proponent, the public, and the decision maker
with sufficient evidence and analysis for determining whether
environmental impacts are significant. The EA ensures compliance with
NEPA when an environmental impact statement (EIS) is not required and a
categorical exclusion (CX) is inappropriate, and facilitates
preparation of an EIS if required.
Sec. 651.12 Finding of No Significant Impact (FONSI).
The FONSI is a decision document that briefly states why an action
will not significantly affect the environment, and that an EIS will not
be prepare(d). The FONSI includes a summary of the EA and notes any
related environmental documents. If the EA is attached, the FONSI need
not repeat any of the EA discussion, but may incorporate it by
reference.
Sec. 651.13 Notice of Intent (NOI).
The NOI is a notice published by the Army in the Federal Register
to inform the public that an EIS will be prepare(d). An NOI may also be
prepared for environmental assessments involving actions of national
interest.
Sec. 651.14 Environmental Impact Statement (EIS).
The EIS is a public document designed to ensure that NEPA policies
and goals are incorporated early into the programs and actions of
Federal agencies. An EIS is intended to provide a full, open, and
balanced discussion of significant environmental impacts. Along with
other project documentation, the EIS provides a basis for informed
decision making.
Sec. 651.15 Record of Decision (ROD).
The ROD is a concise public record of the decision and rationale
following completion of an EIS.
Sec. 651.16 Notice of Availability (NOA).
The NOA is a notice published by the Army in the Federal Register
to inform the public that an environmental document is available for
review. An NOA may be published for draft and final EISs (including
supplements), and will be published for RODs with national interest. An
NOA will also be published for environmental assessments of national
interest. This agency NOA should not be confused with EPA's notice of
availability of weekly receipts of EISs (NWR).
Sec. 651.17 Notice of Availability of Weekly Receipts of EISs (NWR).
This notice is published by the EPA and officially begins the
public review periods. The NWR is published each Friday, and lists the
EISs that were filed the previous week.
Sec. 651.18 Record of Environmental Consideration (REC).
A REC briefly describes the proposed action, identifies the
proponent and approving officials(s), and records the analysis for the
use of categorical exclusions (CX) that require such documentation.
There is no required format of a REC as long as the information above
is included.
Subpart D--Categorical Exclusions (CXs)
Sec. 651.19 General.
(a) Categorical exclusions are categories of actions with no
significant individual or cumulative effect on the human environment,
and for which neither an EA nor EIS is require(d). The use of a CX is
intended to reduce paperwork and eliminate delays in the initiation and
completion of proposed actions.
(b) Army installations and materiel developers are required to
prepare many types of management plans that should be environmentally
assessed (e.g., capital investment strategy, historic preservation,
natural resources etc.). In cases where activities are adequately
assessed as part of these normal planning processes, CXs should be
needed only infrequently to cover unanticipated proposals.
Sec. 651.20 Determining when to use a CX.
(a) To use a CX, the proponent must:
(1) Identify a CX (or multiple CXs) that encompasses the proposed
action.
(2) Ensure that the action has not been segmented to meet the
definition of a CX. This means that the whole proposal must be
considered (e.g., the operations of a construction project must be
taken into account).
(3) Apply the following screening criteria to determine if the
action involves extraordinary circumstances which would preclude the
use of a CX:
(i) Potential to adversely effect public health, safety or the
environment.
(ii) Possible significant cumulative effects, direct or indirect.
(iii) Impose uncertain or unique risks.
(iv) Greater scope or size than is normal for this category of
action.
(v) Reportable releases of hazardous or toxic substances as
specified by Section 102 of the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA).
[[Page 37870]]
(vi) Discharges of petroleum, oils, and lubricants (POLs) or
radioactive substances.
(vii) Generation of noise which causes the existing C-weighted day-
night levels (CDNL) 62 dB or A-weighted day-night levels (ADNL) 65 dB
noise contours to expand within or into noise sensitive land use areas.
Generation of noise which increases the CDNL or ADNL in noise sensitive
land uses by more than 1.5 dB.
(viii) When air emissions exceed de minimis levels and a formal
Clean Air Act conformity determination is required.
(ix) Potential to violate any Federal, state, or local
environmental law, regulation, or ordinance.
(x) More than minor, or unresolved adverse effect on
environmentally sensitive resources.
(b) Environmentally sensitive resources include:
(1) Federally listed candidate, threatened, or endangered species
or their habitats;
(2) Properties listed on or eligible for the National Register of
Historic Places;
(3) Areas having special designation or recognition such as prime
or unique agricultural lands off Army property; coastal zones;
designated wilderness or wilderness study areas; wild and scenic
rivers; national landmarks; 100-year floodplains; wetlands; sole source
aquifers which are potential sources of drinking water; refuges; parks;
or other areas of high environmental sensitivity;
(4) Sacred sites (IAW American Indian Religious Freedom Act).
(c) The use of a CX does not relieve the proponent from compliance
with other statutes, such as consultations under the Endangered Species
Act or the National Historic Preservation Act. Such consultations may
be required to determine the applicability of screening criteria.
Sec. 651.21 List of Categorical Exclusions (CXs).
(a) For convenience only, the CXs are listed under common types of
activities (e.g., administration/operation, construction/demolition,
and repair and maintenance). Certain CXs require a REC, which will be
completed and signed by the proponent. Concurrence on the use of a CX
by the installation environmental coordinator (EC) or other appropriate
EC (e.g., MSC or MACOM) is required. The list of CXs is subject to
continual review and modification. Requests for additions or changes to
the CXs should be sent to the Environmental Programs Directorate.
Subordinate Army headquarters may not modify the CX list through
supplements to this regulation. The proposed modifications to the list
of CXs will be published in the Federal Register by HQDA to provide an
opportunity for public comment.
(b) Administration/Operation Activities:
(1) Routine law and order activities performed by military/military
police and physical plant protection and security personnel.
(2) Preparing, revising, or adopting regulations, instructions,
directives, and plans that implement, without substantial change,
regulations, instructions, directives.
(3) Routine operation of existing facilities and laboratories.
(4) Normal fiscal, administrative, recreation and welfare
activities.
(5) Reductions in force and unit redesignations.
(6) Routine activities of personnel and equipment in facilities
which are compatible with the existing uses.
(7) Deployment of military units on a temporary duty (TDY) or
training basis where existing facilities are used for their intended
purposes.
(8) Administrative personnel-related studies.
(9) Non-construction activities in support of other agencies/
organizations involving community participation projects and law
enforcement activities.
(10) Routine military ceremonies, funerals, and concerts. Special
events such as State-funerals, to include flyovers.
(11) Routine administrative reorganizations and consolidations.
(12) Actions which fall under another Federal agency's list of
categorical exclusions when the other Federal agency is the lead agency
and the Army is the cooperating agency (REC required).
(c) Construction and Demolition:
(1) Construction of an addition to an existing structure or
facility, and new construction which does not involve more than 5.0
cumulative acres of new surface disturbance. New construction does not
include facilities for the transportation, distribution, use, storage,
treatment, and disposal of solid waste, medical waste, and hazardous
waste (REC required).
(2) Demolition and disposal of buildings, structures, or other
improvements, or removal of part thereof for demolition and disposal in
accordance with applicable regulations, including those regulations
applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead
base paint, and other hazardous materials (REC required).
(3) Road and trail construction that involves no more than 5.0
acres of new surface disturbance.
(d) Cultural and Natural Resource Management Activities:
(1) Routine maintenance of timber stands, including tree removal
and pruning.
(2) Timber harvest activities which remove 250,000 board feet or
less of merchantable wood products or salvage as a negotiated timber
sale (REC required).
(3) Land regeneration activities of native trees and vegetation,
including site preparation (REC required).
(4) Routine maintenance of streams (in accordance with U.S. Army
Corps of Engineers' permit authority under Section 404 of the Clean
Water Act and applicable state and local permits), and erosion control
and storm water control structures in accordance with management plans.
(5) Policy and control measures for pest control/removal in
accordance with pest management plans (REC required).
(6) Hunting and fishing policies or regulations that are consistent
with State and local regulations.
(7) Studies, data collection, and information gathering which does
not involve major surface disturbance. Examples include topographic
surveys, bird counts, wetland mapping, and other resources inventories.
(8) Routine maintenance of fish and wildlife habitat.
(9) Routine monitoring of fish and wildlife populations. Examples
include radio collaring, gill netting and counts.
(10) Reintroduction of endemic or native species (other than
endangered or threatened species) into historic habitat (REC Required).
(11) Maintenance of existing archaeological and historical
avoidance markers, fencing, and signs.
(12) Archaeological surveys, inventories, and minor field
excavations.
(e) Procurement and Contract Activities:
(1) Routine procurement of goods and services, including routine
utility services and contracts for services and goods.
(2) Acquisition, installation, and operation of utility and
communication systems, data processing cable and similar electronic
equipment which use existing right-of-way, easement, distribution
systems, and/or facilities (REC required).
(3) Conversion of commercial activities under the provisions of
Army Regulation 5-20.
(4) Modification, product improvement, or configuration
[[Page 37871]]
engineering design change to materiel, structure or item that does not
change the original impact of the materiel, structure or item on the
environment (REC required).
(5) Procurement, testing, use, and/or conversion of a commercial
product (e.g., forklift, generator, chain saw, etc.) which does not
meet the definition of a weapon system (Part 15, DoDI 5000.2), and does
not result in any unusual disposal problem.
(f) Real Estate Activities:
(1) Grants, acquisitions, and renewal of easements for the use of
existing rights-of-way for use by vehicles; electrical, telephone, and
other transmission and communication lines; transmitter and relay
facilities; water, wastewater, stormwater, irrigation pipelines,
pumping stations, and facilities; and for similar public utility and
transportation uses (REC required).
(2) Grants, acquisitions, and renewal or termination of leases,
licenses, agreements, and permits for use of real property for its
intended uses. Examples include, but are not limited to the following:
existing Army controlled property and Army leases of civilian property
for its intended uses to include leases of classroom, office, or
warehouse space leased by a unit for that purpose (REC required).
(3) Disposal of excess easement areas to the underlying fee owner
(REC required).
(4) Transfer of real property to or from another military
department, or other Federal agency if there is no intended or
anticipated significant land use change (REC required).
(5) Transfer of installation utilities to a commercial or
governmental utility.
(6) Acquisition and disposal of land not to exceed 40 acres;
includes facilities on site (REC required).
(7) Timber harvest activities which remove 250,000 board feet or
less of merchantable wood products or salvage as part of an otherwise
categorically excluded real estate transaction or other activity (REC
required).
(g) Repair and Maintenance Activities:
(1) Routine repair and maintenance of buildings, airfields,
grounds, equipment, and other facilities. Examples include, but are not
limited to: Removal and disposal of asbestos-containing material (e.g.,
roof material and floor tile) or lead based paint, and repair of roofs,
doors, windows, or fixtures.
(2) Routine repairs and maintenance of roads, trails, and
firebreaks. Examples include, but are not limited to: grading and
clearing the roadside of brush with or without the use of herbicides;
resurfacing a road to its original conditions; pruning vegetation and
cleaning culverts; and minor soil stabilization activities.
(h) Hazardous Materials/Hazardous Waste Management and Operations:
(1) Use of gauging devices, analytical instruments, and other
devices containing sealed radiological sources; industrial radiography;
use of radioactive material in medical and veterinary practices;
possession of radioactive material incident to performing services such
as installation, maintenance, leak tests and calibration; use of
uranium as shielding material in containers or devices; and use of
radioactive tracers (REC required).
(2) Emergency responses in accordance with emergency response plans
(e.g., Spill Prevention Control and Countermeasure Plan (SPCC)/
Installation Spill Contingency Plan, and Chemical Accident and Incident
Response Plan) as required by the regulatory agency responsible for
release or discharge of oil or hazardous materials/substances; or
emergency actions taken by Explosive Ordnance Demolition (EOD)
detachment or Technical Escort Unit.
(3) Sampling, surveying, well drilling and installation, analytical
testing, site preparation, and intrusive testing to determine if
hazardous wastes, contaminants, or pollutants are present.
(4) Routine management to include transportation, distribution,
use, storage, treatment, and disposal of solid waste, medical waste,
hazardous waste and/or material that complies with EPA, Army, or other
regulatory agency requirements. This CX is not applicable to new
construction of such facilities.
(5) Routine management of solid waste, hazardous waste, and/or
material recycled, reclaimed, reused, or recovered in accordance with
EPA or other applicable regulatory agency requirements. This CX is not
applicable to major new construction.
(6) Routine research, testing, and operations conducted at
established laboratories, to include contractor-operated laboratories.
This does not include laboratories constructed for Biosafety Level 3 or
Biosafety Level 4.
(7) Conduct and maintenance requirements for silver recovery,
alternative sterilization systems, and alternatives for regulated
medical waste treatment methodology (REC required).
(8) Disposal of waste and facilities which require a state or
Federal permit and specific disposal methods are dictated by the
regulating agency (e.g., asbestos, PCBs, and underground storage
tanks).
(9) Reutilization, marketing, distribution, donation, and resale of
items, equipment, or materiel; normal transfer of items to the Defense
Logistics Agency. Items, equipment, or materiel that have been
contaminated with hazardous materials will be adequately cleaned and
will conform to the applicable regulatory agency's requirements.
(i) Training and Testing
(1) On-post simulated war games and other tactical and logistical
exercises involving units of battalion size or smaller.
(2) Training entirely of an administrative or classroom nature.
(3) Intermittent on- and off-post training activities that involve
no live fire or vehicles off established roads or trails. Uses include,
but are not limited to: Land navigation, physical training, FAA
approved aerial overflights, and small unit level training. (REC
required for off-post activities).
(4) Testing of materiel, including off-the-shelf materiel, on DA
controlled real estate where the tests are conducted in conjunction
with the normal execution of the test and evaluation mission (REC
required).
(j) Aircraft and Airfield Activities
(1) Infrequent, temporary (less than 30 days) increases in air
operations up to 50 percent of the typical installation aircraft
operation rate.
(2) Flying activities in compliance with Federal Aviation
Regulations, that are dispersed over a wide area and do not frequently
(more than once per day) pass near the same ground points.
(3) Installation of remote transmitter or receiver facilities on
the installation, or addition of communication channels to existing
facilities.
(4) Installation or upgrade of airfield equipment (e.g., runway
visual range equipment, visual approach slope indicators).
(5) Participation in airshows.
Subpart E--Environmental Assessments (EAs)
Sec. 651.22 Conditions and Actions Normally Requiring an EA.
An EA is a document intended to help proponents and other decision
makers determine the extent of environmental impacts of a proposed
action, alternatives, and whether those impacts are significant. An EA
will be prepared if a proposed action:
(a) Is not an emergency;
(b) Is not exempt or an exception;
(c) Does not qualify as a categorical exclusions (CX); and
(d) Does not qualify for environmental impact statement (EIS)
criteria or actions.
[[Page 37872]]
Sec. 651.23 EA Format.
Environmental Assessments will include:
(a) Review and approval page.
(b) Purpose and need for the action.
(c) Description of the proposed action.
(d) The alternatives considered, including appropriate
consideration of the no-action alternative.
(e) Affected environment.
(f) Environmental consequences of the proposed action and the
alternatives. Discussion of impacts should provide sufficient analysis
to reach a conclusion of ``significance'', and not be merely a
quantification of facts.
(g) Conclusions regarding the significance of impacts, and a
recommendation whether to proceed with an EIS.
(h) Listing of agencies and persons consulted.
(i) References.
Sec. 651.24 Finding of No Significant Impact (FONSI).
(a) An EA results in either a FONSI or a Notice of Intent (NOI) to
prepare an EIS. Initiation of a NOI to prepare an EIS should occur at
any time in the decision process when it is determined that significant
effects may occur as a result of the proposed action.
(b) The FONSI is a formal document that:
(1) Briefly states the decision and the reasons why the decision
will not have a significant effect on the human environment.
(2) Summarizes mitigation commitments (costs and resources required
to complete a mitigation measure).
(3) Explicitly states that an EIS will not be prepared.
(c) The FONSI will either contain a summary of the EA, or have the
EA attached and incorporated by reference.
(d) The FONSI should reference other documents used to make the
decision or finding of no significant impact.
Sec. 651.25 Review and Approval of EAs and FONSIs.
(a) The proponent is responsible for preparing, staffing,
processing (e.g., distributing for comment) and approving the EA with
the concurrence of the decision maker.
(b) The proponent is responsible for preparing and staffing the
FONSI. The decision maker or designee is responsible for approving and
signing the FONSI.
Sec. 651.26 Public Involvement.
(a) Agencies, applicants, local governments, organizations, the
general public, and other interested and affected parties will be
involved as appropriate in the development of a proposal and
preparation of an EA. When considering the type and extent of public
notice and involvement, some of the factors to be weighed are:
(1) Magnitude of the proposed project/action.
(2) Extent of anticipated public interest, based on experience with
similar proposals.
(3) Urgency of the proposal.
(4) National security classification.
(b) Public involvement should begin early in the proposal
development stage, and during preparation of an EA. The direct
involvement of agencies with jurisdiction or special expertise is an
integral part of impact analysis, and provides information and
conclusions for incorporation into EAs. Unclassified documents
incorporated into the EA or FONSI by reference are public documents.
(c) Copies of public notices, ``scoping'' letters, EAs and FONSIs,
and other documents routinely sent to the public will be sent directly
to appropriate Congressional state and district offices.
(d) All EAs will be made available for at least a 30-day public
comment period prior to approval of the FONSI, except as provided in
paragraph (e) of this section.
(e) The next higher level of authority may waive the 30-day comment
period if all of the following conditions are met:
(1) Delay would jeopardize the Army's mission or an applicant's
ability to implement a proposal; and
(2) The EA/FONSI have been sufficiently staffed within the Army and
with agencies with special expertise or with authority over an aspect
of the proposal; and
(3) The action does not involve wetlands, floodplains, or the
circumstances and actions described in 40 CFR 1501.4(e)(2). Appropriate
public notice of the availability of the completed EA and approved
FONSI shall be made.
Sec. 651.27 Mitigation and Implementation Plan.
(a) Throughout the NEPA process, the proponent will consider
mitigating measures to avoid or minimize environmental harm. Mitigation
measures or programs will be clearly assessed in the EA and identified
in the FONSI for the decision maker to approve. Mitigation committed to
as part of the decision will be implemented by the proponent; for
purposes of identifying funding requirements, mitigations should be
ranked on a priority basis.
(b) An EA may have a no significant impact conclusion because of
specific mitigation measures. Such key measures must be accomplished in
the stated time frame to support the no significant impact conclusion,
or the significance of the project impacts must be reevaluated.
Subpart F--Environmental Impact Statements (EISs)
Sec. 651.28 Introduction.
An EIS is a public document designed to ensure that NEPA policies
and goals are incorporated early into the programs and actions of
Federal agencies. An EIS is intended to provide a full, open, and
balanced discussion of significant environmental impacts that may
result from a proposed action. Along with other project documentation,
the EIS provides a basis for informed decision making.
Sec. 651.29 Conditions Requiring an EIS.
In determining if an EIS is appropriate, the proponent should
consider whether the proposed action has the potential to:
(a) Significantly degrade environmental quality or public health or
safety.
(b) Significantly adversely affect historic or archaeological
resources, public parks and recreation areas, wildlife refuge or
wilderness areas, wild and scenic rivers, or aquifers.
(c) Significantly adversely impacts properties listed or meeting
the criteria for listing in the National Register of Historic Places,
or the National Registry of Natural Landmarks.
(d) Significantly adversely impact prime and unique farmlands
located off-post, wetlands, floodplains, coastal zones, or ecologically
important areas or other areas of unique or critical environmental
sensitivity.
(e) Result in significant or uncertain environmental effects, or
unique or unknown environmental risks.
(f) Significantly adversely affect a species or habitat listed or
proposed for listing on the Federal list of endangered or threatened
species, and Federal candidate species.
(g) Either establish a precedent for future action or represent a
decision in principle about a future consideration with significant
environmental effects.
(h) Adversely interact with other actions with individually
insignificant effects so that cumulatively significant environmental
effects result.
(i) Involve the production, storage, transportation, use, treatment
and disposal of hazardous or toxic materials to include medical wastes
that may have significant environmental impact.
[[Page 37873]]
Sec. 651.30 Actions Normally Requiring an EIS.
(a) The following actions normally require preparation of an EIS:
(1) Land acquisition greater than 640 acres.
(2) Construction of major ranges, such as multipurpose range
complexes (MPRCs).
(3) Expansion/Development of a central impact area.
(4) A Category I (major) weapons system acquisition program.
(5) Permanent restationing of a Brigade or larger (TOE) unit during
peacetime in the continental United States.
(6) Training activities where approved land use plans or regulatory
(e.g.; soil/land/water) plans or goals are exceeded.
(7) Master Plans for established installations where major new
developments or substantial changes in mission requirements are
proposed.
(8) Division or larger training activities conducted outside the
boundaries of an existing military reservation.
(9) Introduction or reintroduction of Federally listed endangered/
threatened species, or exotic species.
(10) Construction projects in a National Priorities List (NPL) site
or other major cleanup site that are not related to an environmental
restoration project.
(11) Proposal similar to past project or action that contributed to
or created a major cleanup action.
(12) Construction or location of a facility within a 100-year
floodplain where there is potential for significant release of
hazardous substances.
(13) Construction or upgrading of a laboratory to a Biosafety Level
4 (32 CFR part 627, App. G).
(14) Proposed action would create or expand an existing Noise Zone
III in a noise sensitive area.
(15) Construction of facility to store, treat, or dispose of large
quantities of chemical agents (e.g., mustard, sarin, tabun). Does not
include riot agents.
(b) While these are individual actions, one must consider the full
spectrum of actions that constitute a single proposed action. For
example, construction of a multipurpose range must also consider the
impacts of operations; land acquisition must consider the intended
uses.
Sec. 651.31 EIS Format.
The EIS must contain:
(a) Cover sheet.
(b) Summary.
(c) Table of contents.
(d) Purpose of and need for the action.
(e) Alternatives considered, including proposed action and no
action alternative.
(f) Affected environment (baseline conditions that may be
impacted).
(g) Environmental and socioeconomic consequences.
(h) List of preparers.
(i) Distribution list.
(j) Index.
(k) Appendixes (as appropriate).
Sec. 651.32 Approval Authority.
(a) The primary approval authority for EISs and related documents
(NOI, NOA) is the MACOM Commander, Program Executive Officer, Major
Subordinate Command Commander with Milestone Decision Authority for
acquisition/development programs, or HQDA equivalent for Army-wide
programs for which HQDA is the proponent.
(b) Approval authority may be delegated for actions that are
limited in scope (e.g., affect only one installation) and are without
apparent major controversy. This delegation extends to garrison
commanders and Program or Systems Managers).
(c) When delegating authority, consideration should be given to the
scope of the proposal, public/agency controversy and sensitivity, and
the capacity to adequately and objectively administer the analysis.
Sec. 651.33 Notice of Intent (NOI).
(a) The NOI initiates the formal scoping process, and is prepared
by the proponent.
(b) For proposed actions that are widely controversial, or of
national concern or interest, the Office, Chief of Legislative Liaison
(OCLL) shall be notified of the pending action so that appropriate
congressional coordination may be effected.
(c) The Office, Chief of Public Affairs, will coordinate public
announcements through its chain of command.
(d) The approved NOI shall be forwarded to the Army Federal
Register Liaison Officer for publication in the Federal Register.
Copies of the Notice may also be distributed to agencies,
organizations, and individuals who have expressed interest. A copy of
the approved NOI shall be forwarded to the Director of Environmental
Programs, HQDA.
Sec. 651.34 Scoping.
This scoping process identifies the significant issues related to a
proposed action. Issues which are not significant or which have been
covered by prior environmental review are identified and eliminated
from detailed study. Proper scoping also identifies reasonable
alternatives, essential participants, and information needed for
analysis. Affected Federal, state, and local agencies, affected Indian
Tribes, and other interested persons are included as part of the
scoping process. Proper scoping reduces the chances of overlooking
significant issues or reasonable alternatives, and increases public
confidence in the decision making process.
Sec. 651.35 Preparation and Processing of the Draft Environment Impact
Statement (DEIS).
(a) The proponent prepares draft environmental impact statements.
Following appropriate staffing and revisions, the DEIS is approved for
public release by the delegated authority.
(b) Following approval, the proponent will forward five copies of
the DEIS to EPA for filing and notice in the Federal Register;
publication of EPA's notice of availability of weekly receipts (NWR)
commences the public comment period. The proponent will distribute the
DEIS prior to, or simultaneous with, filing with EP(A) Distribution
will include appropriate Federal, state, regional and local agencies;
Native American tribes; and organizations and private citizens who have
expressed interest in the proposed action.
(c) For proposed actions that are widely controversial, or of
national concern or interest, the Office, Chief of Legislative Liaison
(OCLL) shall be notified of the pending action so that appropriate
congressional coordination may be effected.
(d) The Office, Chief of Public Affairs, will coordinate public
announcements through its chain of command.
(e) The proponent may prepare a separate Notice of Availability
(NOA) to be published in the Federal Register by the Army Federal
Register Liaison Officer, and in newspapers of general circulation in
the affected area(s). Publication should be on the same date as the EPA
publication.
Sec. 651.36 Public Review of the DEIS.
(a) The DEIS public comment period will be no less than 45 days. If
the statement is unusually long, a summary of the DEIS may be
circulated, with an attached list of locations where the entire DEIS
may be reviewed (for example, local public libraries).
(b) Distribution of the complete DEIS must include the following:
(1) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, state, or local agency
[[Page 37874]]
authorized to develop and enforce environmental standards.
(2) The applicant, if any.
(3) Any person, organization, or agency requesting the entire draft
environmental impact statement.
(c) News releases or public notices should be prepared and issued
to publicize any meetings or hearings that may be scheduled.
Sec. 651.37 Preparation of the Final Environmental Impact Statement
(FEIS).
(a) Response to comments. The proponent shall consider and respond
appropriately to public comments. Responses to comments on the DEIS
will be incorporated by modification of the text and/or written
explanation. Similar comments should be grouped for a common response.
(b) If the changes to the DEIS are exclusively clarifications or
minor factual corrections, a document consisting of only the DEIS
comments, responses to the comments, and errata sheets may be prepared
and circulated. If such an abbreviated FEIS is anticipated, the DEIS
should contain a statement advising reviewers to keep the document so
they will have a complete set of ``final'' documents. The final EIS to
be filed with EPA will consist of a complete document containing a new
cover sheet, the errata sheets, comments and responses, and the text of
the draft EIS. Coordination, approval, filing, and public notice of an
abbreviated FEIS is the same as for a draft EIS.
(c) If extensive modifications are warranted, the proponent will
prepare a new, complete FEIS. Preparation, coordination, approval,
filing, and public notice of the FEIS is the same as the process
outlined for the DEIS.
(d) The FEIS distribution must include any person, organization, or
agency that submitted substantive comments on the DEIS. One copy of the
FEIS will be forwarded to the U.S. Army Environmental Center.
(e) The FEIS will clearly identify the Army's preferred alternative
unless prohibited by law.
Sec. 651.38 Decision.
(a) No final decision on a proposed action will be made until at
least 30 days after EPA has published the NWR of the FEIS in the
Federal Register, or at least 90 days after the NWR of the DEIS,
whichever is later.
(b) The proponent will prepare a Record of Decision (ROD) for the
decision maker(s) signature, which will--
(1) Clearly state the decision. Describe the decision in sufficient
detail to address the significant issues and ensure long-term
monitoring and execution.
(2) Identify all alternatives considered by the Army in reaching
its decision, specifying the environmentally preferred alternative(s).
The Army will discuss preferences among alternatives based on relevant
factors including environmental, economic, and technical considerations
and agency statutory missions.
(3) Identify and discuss all such factors, including any essential
considerations of national policy that were balanced by the Army in
making its decision. Because economic and technical analyses are
balanced with environmental analysis, the agency preferred alternative
will not necessarily be the environmentally preferred alternative.
(4) State how those considerations entered into the final decision.
(5) State whether all practicable means to avoid or minimize
environmental harm from the selected alternative have been adopted, and
if not, why they were not. A monitoring and enforcement program will be
adopted and summarized for any mitigation.
(c) Implementation of the decision may begin immediately after
approval of the ROD.
(d) For RODs involving actions of national interest or concern, the
proponent will prepare a Notice of Availability (NOA) to be published
in the Federal Register by the Army Federal Register Liaison Officer.
Processing and approval of the NOA is the same as for an NOI.
(e) RODs will be distributed to agencies with authority or
oversight over aspects of the proposal, cooperating agencies,
appropriate Congressional state and district offices, all parties that
are directly affected, and others upon request.
(f) One copy of the ROD will be forwarded to the U.S. Army
Environmental Center.
(g) Implementing the Decision. The Army will ensure that its
decision is properly execute(d) Mitigation and other conditions
assessed in EISs and accepted as part of the decision will be
implemented by the proponent. The proponent will--
(1) Include appropriate conditions in grants, permits, or other
approvals.
(2) Ensure mitigation measures are properly resourced and
implemented.
(3) Upon request, inform cooperating or commenting agencies on the
progress in carrying out adopted mitigation measures that they have
proposed and that were adopted by the agency making the decision.
(4) Upon request, make the results of relevant monitoring available
to the public and Congress.
Sec. 651.39 Supplemental EISs (SEISs).
(a) An SEIS is an addition to a draft and/or final EIS that has
been filed; a supplement should not be considered a major revision to
an EIS. If the changes to a proposed action, circumstances, or analysis
are significant, a revised (new) EIS shall be prepared rather than a
supplemental EIS. A process of publishing ``supplements'' can become
confusing to reviewers, and should be done only when an analysis can be
substantially improved without confusion.
(b) SEISs are prepared, approved, filed, and given notice in the
same way as draft and final EISs.
(c) A Notice of Intent need not be published or amended, nor new
scoping undertaken, for a supplemental draft EIS that is expected to be
filed within one year from the date the original EIS being supplemented
(draft or final) was filed with EPA, and the affected publics are not
expected to change drastically (i.e., supplement does not involve
actions that may impact heretofore unaffected publics).
Sec. 651.40 The Army as a Cooperating Agency.
(a) The Army may be a Cooperating Agency:
(1) To provide information or technical expertise to a Lead Agency.
(2) To approve portions of a proposed action.
(3) To ensure the Army has an opportunity to be involved in an
action of another Federal agency which will affect the Army.
(b) Review and Approval of EISs and RODs
(1) Adequacy of an EIS is the responsibility primarily of the Lead
Agency. However, as a Cooperating Agency with approval authority over
portions of a proposal, the Army may adopt an EIS after a review
concludes the EIS adequately satisfies the Army's comments and
suggestions.
(2) If the Army is a major approval authority for the proposed
action, the appropriate Army official may sign the Record of Decision
prepared by the Lead Agency, or prepare a separate, more focused ROD.
If the Army's approval authority is only a minor aspect of the overall
proposal, such as issuing a temporary use permit, the Army need not
sign the Lead Agency's ROD nor prepare a separate ROD.
(3) The magnitude of the Army's involvement in the proposal will
determine the appropriate level and
[[Page 37875]]
scope of Army review of NEPA documents. If the Army is a major approval
authority or may be severely impacted by the proposal or an
alternative, the Army should undertake the same level of review as if
it were the Lead Agency; if the involvement is limited, the review may
be substantially less. The Lead Agency is responsible for overall
supervision of the EIS, and the Army will attempt to meet all
reasonable timeframes imposed by the Lead Agency.
Gregory D. Showalter,
Army Federal Register Liaison Officer.
[FR Doc. 96-17991 Filed 7-19-96; 8:45 am]
BILLING CODE 3710-08-P
