[Federal Register Volume 61, Number 17 (Thursday, January 25, 1996)]
[Proposed Rules]
[Pages 2219-2228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-974]
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UTAH RECLAMATION MITIGATION AND CONSERVATION COMMISSION
43 CFR Part 10010
Policy and Procedures for Implementing the National Environmental
Policy Act
AGENCY: Utah Reclamation Mitigation and Conservation Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Central Utah Project Completion Act established the Utah
Reclamation Mitigation and Conservation Commission (Commission) and
directed that the Commission be considered a Federal agency for
purposes of compliance with the National Environmental Policy Act of
1969, as amended (NEPA). In accordance with NEPA and Council on
Environmental Quality (CEQ) regulations, Federal agencies must
establish procedures to guide their actions in implementing NEPA. This
rule establishes the Commission's policies and procedures regarding
NEPA implementation. It defines the procedures that the Commission will
follow in preparing environmental documents and in making decisions
pursuant to NEPA. The rule also provides information to other agencies
and the public regarding how they may participate in the Commission's
NEPA activities. The intended effects of this rule are that the
Commission will have at its disposal specific guidance on how to
fulfill its NEPA responsibilities, and that the public will have a
clear understanding of the Commission's NEPA procedures.
DATES: Comments on the proposed rule will be accepted on or before
March 11, 1996.
ADDRESSES: Planning Manager, Utah Reclamation Mitigation and
Conservation Commission, 111 East Broadway, suite 310, Salt Lake City,
Utah, 84111. Telephone: 801-524-3146.
FOR FURTHER INFORMATION CONTACT: Joan Degiorgio, Telephone: 801-524-
3146.
SUPPLEMENTARY INFORMATION:
Background
The Commission was established by the Central Utah Project
Completion Act (Public Law 102-575, October 30, 1992). The Commission's
mission is to implement mitigation and conservation measures to offset
the effects of Federal reclamation projects in Utah and to take other
actions for the conservation of important fish, wildlife, and
recreation resources. The Commission was established to focus the
authority for reclamation mitigation and to coordinate interagency
efforts toward meeting mitigation needs. This rule provides the
Commission, affected Federal agencies, the State of Utah, and the
public with the necessary guidance to evaluate the environmental
effects of Commission activities and to ensure that these will promote
the protection and enhancement of environmental quality. It is adopted
in accordance with the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321-4347) and with Council on Environmental Quality
(CEQ) regulations (40 CFR 1500-1508).
NEPA Rule Content
This rule provides direction on all aspects of the Commission's
NEPA process. It establishes general policies, provides guidance on
initiating the NEPA process, describes procedures relating to
Environmental Assessments (EA) and Environmental Impact Statements
(EIS), describes the relationship between NEPA and the Commission's
decision making process,
[[Page 2220]]
and provides guidance on managing the NEPA process.
Relationship to Department of Interior NEPA Procedures
The Commission's NEPA rule is modeled after the U.S. Department of
the Interior's (Department) NEPA procedures (Departmental Manual, Part
516) and relevant portions of Appendix I to that Part, which
establishes U.S. Fish and Wildlife Service (Service) NEPA procedures.
Four factors led the Commission to conclude that it is appropriate to
closely follow Department and Service procedures. First, Department and
Service reclamation mitigation and resource conservation activities
closely parallel those of the Commission and needs relating to NEPA are
therefore similar. Second, the Department's Office of the Solicitor is
responsible for providing the Commission with legal advice regarding
the Commission's NEPA activities and is familiar with the Department's
NEPA procedures. Third, the Commission will be involved in numerous
interagency activities with the Department, the Service, and other
bureaus within the Department, all of whom are familiar with, and bound
by, Departmental NEPA procedures. Fourth, other agencies and
organizations that will likely participate in Commission sponsored
activities, including the Utah Division of Wildlife Resources and the
Central Utah Water Conservancy District, have been involved in
mitigation and conservation initiatives involving Departmental NEPA
procedures and are therefore familiar with these procedures.
The Commission's NEPA rule generally adheres to the language
contained in the Department's Manual. Exceptions are as follows. First,
references to the Department, the Secretary, the Fish and Wildlife
Service, and departmental bureaus have been substituted with ``the
Commission'' or other appropriate language. Second, portions of the
Departmental procedures that assign responsibilities for NEPA planning
and approval processes have been modified to conform to the
Commission's authorities and approval process. Third, references to
regulatory and enforcement activities are omitted as the Commission is
not a regulatory agency. Fourth, references to the activities of
specific Department of the Interior bureaus are omitted. Fifth,
references to activities and subjects that are outside of the
Commission's jurisdiction or that are not applicable to the geographic
area subject to Commission actions (for example, marine resources) are
omitted. Sixth, a new section is added that references tiering of
environmental documents.
Categorical exclusions listed in paragraph (a) of Section 10010.61
are from Part 516 of the Department's Manual. With one addition,
categorical exclusions in paragraph (b) of that section are from the
Fish and Wildlife Service's appendix to Part 516. The addition is
(b)(6), derived from the Bureau of Reclamation's appendix to Part 516,
and relates to the Commission's ability to transfer operations and
maintenance of facilities.
The rule's format deviates significantly from that of the
Departmental Manual in order to be consistent with the format of the
Code of Federal Regulations. Minor editorial changes have also been
made.
Public Participation
The Commission is committed to open and full public participation
in its activities. The Commission has established a planning rule (43
CFR Part 10005) that describes opportunities for the public to become
involved in the preparation and implementation of the Commission's
mandated five-year plan. The public will also be given ample
opportunity to become involved in the evaluation of individual projects
that are components of that plan. The procedures for this are described
in this NEPA rule.
Rule Preparation and Review
This rule was prepared in consultation with affected Federal and
state agencies and other interested parties. The availability of the
draft rule was announced at the December 18, 1995, Commission meeting.
Notice of availability was posted in the Federal Register and
appropriate newspapers. Copies were made available at the Commission
meeting and mailed to interested parties. A sixty-day public comment
period was established, commencing on the date the notice appears in
the Federal Register.
Dated: January 5, 1996.
Michael C. Weland,
Executive Director.
List of Subjects in 43 CFR Part 10010
Administrative practices and procedures, Environmental impact
statements, Environmental protection, Intergovernmental relations,
Natural resources, Reclamation, Water resources.
For the reasons set out in the preamble, 43 CFR Chapter III is
proposed to be amended as set forth below.
1. A new part 10010 is added to read as follows:
PART 10010--POLICIES AND PROCEDURES FOR IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
Subpart A. Protection and Enhancement of Environmental Quality
10010.1 Purpose
10010.2 Policy
10010.3 General Responsibilities
10010.4 Consideration of Environmental Values
10010.5 Consultation, Coordination, and Cooperation with Other
Agencies and Organizations
10010.6 Public Involvement
10010.7 Mandate
Subpart B. Initiating the NEPA Process
10010.8 Purpose
10010.9 Apply NEPA Early
10010.10 Whether to Prepare an EIS
10010.11 Lead Agencies
10010.12 Cooperating Agencies
10010.13 Scoping
10010.14 Time Limits
Subpart C. Environmental Assessments
10010.15 Purpose
10010.16 When to Prepare
10010.17 Public Involvement
10010.18 Content
10010.19 Format
10010.20 Adoption
Subpart D. Environmental Impact Statements
10010.21 Purpose
10010.22 Statutory Requirements
10010.23 Timing
10010.24 Page Limits
10010.25 Supplemental Statements
10010.26 Format
10010.27 Cover Sheet
10010.28 Summary
10010.29 Purpose and Need
10010.30 Alternatives Including the Proposed Action
10010.31 Appendix
10010.32 Tiering
10010.33 Incorporation by Reference
10010.34 Incomplete or Unavailable Information
10010.35 Methodology and Scientific Accuracy
10010.36 Environmental Review and Consultation Requirements
10010.37 Inviting Comments
10010.38 Response to Comments
10010.39 Elimination of Duplication with State and Local Procedures
10010.40 Combining Documents
10010.41 Commission Responsibility
10010.42 Public Involvement
10010.43 Further Guidance
10010.44 Proposals for Legislation
10010.45 Time Periods
Subpart E. Relationship to Decision-Making
10010.46 Purpose
10010.47 Pre-decision Referrals to CEQ
10010.48 Decision-Making Procedures
10010.49 Record of Decision
10010.50 Implementing the Decision
10010.51 Limitations on Actions
[[Page 2221]]
10010.52 Timing of Actions
10010.53 Emergencies
Subpart F. Managing the NEPA Process
10010.54 Purpose
10010.55 Organization for Environmental Quality
10010.56 Approval of EISs
10010.57 List of Specific Compliance Responsibilities
10010.58 Information About the NEPA Process
Subpart G. Actions Requiring an EIS and Actions Subject to Categorical
Exclusion
10010.59 Purpose
10010.60 Actions Normally Requiring an EIS
10010.61 Actions Subject to Categorical Exclusion
10010.62 Exceptions to Categorical Exclusions
Authority: 43 U.S.C. 620k (note); Sec. 301(c)(3) of Pub. L. 102-
575, 106 Stat. 4600, 4625.
Subpart A. Protection and Enhancement of Environmental Quality
Sec. 10010.l Purpose.
This Subpart establishes the Commission's policies for complying
with Title 1 of the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321-4347) (NEPA); Section 2 of Executive Order
11514, Protection and Enhancement of Environmental Quality, as amended
by Executive Order 11991; and the regulations of the Council on
Environmental Quality (CEQ) implementing the procedural provisions of
NEPA (40 CFR parts 1500 through 1508).
Sec. 10010.2 Policy.
It is the policy of the Commission:
(a) To provide leadership in protecting and enhancing those aspects
of the quality of the Nation's environment which relate to or may be
affected by the Commission's policies, goals, programs, plans, or
functions in furtherance of national environmental policy;
(b) To use all practicable means to improve, coordinate, and direct
its policies, plans, functions, programs, and resources in furtherance
of national environmental goals;
(c) To interpret and administer, to the fullest extent possible,
the policies, regulations, and public laws of the United States
administered by the Commission in accordance with the policies of NEPA;
(d) To consider and give significant weight to environmental
factors, along with other essential considerations, in developing
proposals and making decisions in order to achieve a proper balance
between the development and utilization of natural, cultural, and human
resources and the protection and enhancement of environmental quality;
(e) To consult, coordinate, and cooperate with other Federal
agencies and State, local, and Indian tribal governments in the
development and implementation of the Commission's plans and programs
affecting environmental quality and, in turn, to provide to the fullest
extent practicable, these entities with information concerning the
environmental impacts of their respective plans and programs;
(f) To provide, to the fullest extent practicable, timely
information to the public to better assist in understanding the
Commission's plans and programs affecting environmental quality and to
facilitate their involvement in the development of such plans and
programs; and
(g) To cooperate with and assist the CEQ.
Sec. 10010.3 General responsibilities.
The following responsibilities reflect the Commission's decision
that the officials responsible for making program decisions are also
responsible for taking the requirements of NEPA into account in those
decisions and will be held accountable for that responsibility:
(a) Executive Director. (1) Is the Commission's focal point on NEPA
matters and is responsible for overseeing the Commission's
implementation of NEPA.
(2) Serves as the Commission's principle contact with the CEQ.
(3) Assigns to Commission staff the responsibilities outlined in
this part.
(4) Must comply with the provisions of NEPA, E.O. 11514 as amended,
the CEQ regulations, and this part.
(5) Will interpret and administer, to the fullest extent possible,
the policies, regulations, and public laws of the United States
administered under the Commission's jurisdiction in accordance with the
policies of NEPA.
(6) Will continue to review the Commission's statutory authorities,
administrative regulations, policies, programs, and procedures, in
order to identify any deficiencies or inconsistencies therein which
prohibit or limit full compliance with the intent, purpose, and
provisions of NEPA and, in consultation with the Department of the
Interior Office of the Solicitor, shall take or recommend, as
appropriate, corrective actions as may be necessary to bring these
authorities and policies into conformance with the intent, purpose, and
procedures of NEPA.
(7) Will monitor, evaluate, and control on a continuing basis the
Commission's activities so as to protect and enhance the quality of the
environment. Such activities will include those directed to conserving
and enhancing the environment and designed to accomplish other program
objectives which may affect the quality of the environment. The
Executive Director will develop programs and measures to protect and
enhance environmental quality and assess progress in meeting the
specific objectives of such activities as they affect the quality of
the environment.
(b) Members of the Commission. (1) Are responsible for compliance
with NEPA, E.O. 11514, as amended, the CEQ regulations, and this part.
(2) Will insure that, to the fullest extent possible, the policies,
regulations, and public laws of the United States administered under
the Commission's jurisdiction are interpreted and administered in
accordance with the policies of NEPA.
(c) Department of the Interior Office of the Solicitor. Is
responsible for providing legal advice to the Commission regarding
compliance with NEPA.
Sec. 10010.4 Consideration of environmental values.
(a) In Commission management. (1) In the management of the natural,
cultural, and human resources under its jurisdiction, the Commission
must consider and balance a wide range of economic, environmental, and
social objectives at the local, regional, and national, levels, not all
of which are quantifiable in comparable terms. In considering and
balancing these objectives, Commission plans, proposals, and decisions
often require recognition of complements and resolution of conflicts
among interrelated uses of these natural, cultural, and human resources
within technological, budgetary, and legal constraints.
(2) Commission project reports, program proposals, issue papers,
and other decision documents must carefully analyze the various
objectives, resources, and constraints, and comprehensively and
objectively evaluate the advantages and disadvantages of the proposed
actions and their reasonable alternatives. Where appropriate, these
documents will utilize and reference supporting and underlying
economic, environmental, and other analyses.
(3) The underlying environmental analyses will factually,
objectively, and comprehensively analyze the environmental effects of
proposed actions and their reasonable alternatives. They will
systematically
[[Page 2222]]
analyze the environmental impacts of alternatives, and particularly
those alternatives and measures which would reduce, mitigate, or
prevent adverse environmental impacts or which would enhance
environmental quality.
(b) In internally initiated proposals. Officials responsible for
development or conduct of planning and decision making systems within
the Commission shall incorporate to the maximum extent necessary
environmental planning as an integral part of these systems in order to
insure that environmental values and impacts are fully considered and
in order to facilitate any necessary documentation of those
considerations.
(c) In externally initiated proposals. Officials responsible for
development or conduct of grant, contract, or other externally
initiated activities shall require applicants, to the extent necessary
and practicable, to provide environmental information, analyses, and
reports as an integral part of their applications. This will serve to
encourage applicants to incorporate environmental considerations into
their planning processes as well as provide the Commission with
necessary information to meet its own environmental responsibilities.
Sec. 10010.5 Consultation, coordination, and cooperation with other
agencies and organizations.
(a) Commission plans and programs. (1) Officials responsible for
planning or implementing Commission plans and programs will develop and
utilize procedures to consult, coordinate, and cooperate with relevant
State, local, and Indian tribal governments; other Federal agencies;
and public and private organizations and individuals concerning the
environmental effects of these plans and programs on their
jurisdictions and/or interests.
(2) The Commission will utilize, to the maximum extent possible,
existing notification, coordination, and review mechanisms established
by the Office of Management and Budget, the Water Resource Council, and
CEQ. However, use of these mechanisms must not be a substitute for
early and positive consultation, coordination, and cooperation with
others, especially State, local, and Indian tribal governments.
(b) Other Commission activities. (1) Technical assistance, advice,
data, and information useful in restoring, maintaining, and enhancing
the quality of the environment will be made available to other Federal
agencies, State, local, and Indian tribal governments, institutions,
and individuals as appropriate.
(2) Information regarding existing or potential environmental
problems and control methods developed as a part of research,
development, demonstration, test, or evaluation activities will be made
available to other Federal agencies, State, local, and Indian tribal
governments, institutions and other entities as appropriate.
(c) Plans and programs of other agencies and organizations. (1)
Officials responsible for protecting, conserving, developing, or
managing resources under the Commission's jurisdiction shall coordinate
and cooperate with State, local and Indian tribal governments, other
Federal agencies, and public and private organizations and individuals,
and provide them with timely information concerning the environmental
effects of these entities' plans and programs.
(2) The Commission will participate early in applicable planning
processes of other agencies and organizations in order to ensure full
cooperation with and understanding of the Commission's programs and
interests in natural, cultural, and human resources.
(3) The Commission will utilize to the fullest extent possible,
existing review mechanisms to avoid unnecessary duplication of effort
and to avoid confusion by other organizations.
Sec. 10010.6 Public involvement.
The Commission will develop and utilize procedures to ensure the
fullest practicable provision of timely public information and
understanding of its plans and programs including information on the
environmental impacts of alternative courses of action. These
procedures will include, wherever appropriate, provision for public
meetings or hearings in order to obtain the views of interested
parties. The Commission will also encourage State and local agencies
and Indian tribal governments to adopt similar procedures for informing
the public concerning their activities affecting the quality of the
environment.
Sec. 10010.7 Mandate.
(a) This part provides instructions for complying with NEPA and
Executive Order 11514, Protection and Enhancement of Environmental
Quality, as amended by Executive Order 11991.
(b) The Commission hereby adopts the regulations of the CEQ,
implementing the procedural provisions of NEPA (sec. 102(2)(C)) except
where compliance would be inconsistent with other statutory
requirements. In the case of any apparent discrepancies between these
procedures and the mandatory provisions of the CEQ regulations the
regulations shall govern.
(c) Instructions supplementing the CEQ regulations are provided in
subparts B through G of this part. Citations in brackets refer to the
CEQ regulations. In addition, the Commission may prepare a handbook or
other technical guidance, or adopt an appropriate handbook or guidance
prepared by another agency, for its personnel on how to apply this part
to principal programs.
Subpart B. Initiating the NEPA Process
Sec. 10010.8 Purpose.
This subpart provides supplemental instructions for implementing
those portions of the CEQ regulations pertaining to initiating the NEPA
process.
Sec. 10010.9 Apply NEPA early (40 CFR 1501.2).
(a) The Commission will initiate early consultation and
coordination with other Federal agencies having jurisdiction by law or
special expertise with respect to any environmental impact involved,
and with appropriate Federal, State, local and Indian tribal agencies
authorized to develop and enforce environmental standards.
(b) The Commission will also consult early with interested private
parties and organizations, including when the Commission's own
involvement is reasonably foreseeable in a private or non-Federal
application.
(c) The Commission will insure that applicants are informed of any
environmental information required, to be included in their
applications and of any consultation with other Federal agencies, and
State, local or Indian tribal governments required prior to making the
application.
Sec. 10010.10 Whether to prepare an EIS (40 CFR 1501.4).
(a) Categorical exclusions (CX) (40 CFR 1508.4).
(1) The following criteria will be used to determine categories of
actions to be excluded from preparation of an EA or EIS:
(i) Analysis or experience shows that the action or group of
actions would have no significant effect on the quality of the human
environment; and
(ii) The action or group of actions would not involve unresolved
conflicts concerning alternative uses of available resources.
(2) Based on the criteria in paragraph (a)(1) of this section, the
categories of actions listed in subpart G of this part
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are excluded from the preparation of an EA or EIS.
(3) The exceptions listed in subpart G of this part apply to
individual actions subject to CX. Appropriate environmental documents
must be prepared for any actions involving these exceptions.
(4) Notwithstanding the criteria, exclusions, and exceptions in
paragraphs (a)(1) through (3), extraordinary circumstances may dictate
or a responsible Commission official may decide to prepare an
environmental document to assist with decision-making.
(b) Environmental Assessment (EA) (40 CFR 1508.9). Procedures
regarding preparation of an EA are addressed in subpart C of this part.
(c) Finding of No Significant Impact (FONSI) (40 CFR 1508.13). A
FONSI will be prepared as a separate document based upon analysis of an
EA and a determination that the proposed action will have no
significant environmental impact.
(d) Notice of Intent (NOI) (40 CFR 1508.22). A NOI will be prepared
as soon as practicable after a decision to prepare an environmental
impact statement and shall be published in the Federal Register and
made available to the affected public in accordance with 40 CFR 1506.6.
Publication of a NOI may be delayed if there is proposed to be more
than three (3) months between the decision to prepare an environmental
impact statement and the time preparation is actually initiated. The
Commission will periodically publish a consolidated list of these
notices in the Federal Register.
(e) Environmental Impact Statement (EIS) (40 CFR 1508.11).
Decisions/actions which would normally require the preparation of an
EIS are identified in subpart G of this part. Procedures regarding
preparation of an EIS are addressed in subpart D of this part.
Sec. 10010.11 Lead agencies (40 CFR 1501.5).
(a) The Commission will serve as lead, or, as appropriate, joint-
lead agency for any NEPA procedure that is sponsored by or otherwise
significantly involves the Commission.
(b) The Commission will inform the Office of the Solicitor of any
agreements to assume lead or joint-lead agency status.
(c) A non-Federal agency may be designated as a joint lead agency
if it has a duty to comply with a local or State environmental review
requirement. Any non-Federal agency may be a cooperating agency by
agreement. The Commission will consult with the Office of the Solicitor
in cases where such non-Federal agencies are also applicants before the
Commission to determine joint-lead agency responsibilities.
Sec. 10010.12 Cooperating agencies (40 CFR 1501.6).
(a) The Commission will adhere to CEQ directives both in the
designation of cooperating agencies for Commission sponsored NEPA
procedures and in seeking designation as a cooperating agency for
procedures sponsored by others. Any non-Federal agency may be a
cooperating agency in Commission NEPA proceedings by agreement. The
Commission will consult with the Office of the Solicitor in cases where
such non-Federal agencies are also applicants before the Commission to
determine cooperating agency responsibilities.
(b) The Commission will inform the Office of the Solicitor of any
agreements to assume cooperating agency status or any declinations
pursuant to 40 CFR 1501.6 (c).
Sec. 10010.13 Scoping (40 CFR 1501.7).
(a) The invitation requirement in 40 CFR 1501.7(a)(1) may be
satisfied by including such an invitation in the NOI.
(b) If a scoping meeting is held, consensus is desirable; however,
the lead agency is ultimately responsible for the scope of an EIS. In
the case of procedures involving joint-lead agencies, all joint-lead
agencies share this responsibility.
Sec. 10010.14 Time limits (40 CFR 1501.8).
When time limits are established to prepare an environmental
document they should reflect the availability of personnel and funds.
Subpart C. Environmental Assessments
Sec. 10010.15 Purpose.
This subpart provides supplemental instructions for implementing
those portions of the CEQ regulations pertaining to environmental
assessments (EA).
Sec. 10010.16 When to prepare (40 CFR 1501.3).
(a) An EA will be prepared for all actions, except those categories
of action excluded from documentation or addressed adequately by a
previous environmental document, or for those actions for which a
decision has already been made to prepare an EIS. The purpose of such
an EA is to allow the responsible official to determine whether to
prepare an EIS.
(b) In addition, an EA may be prepared on any action at any time in
order to assist in planning and decision making.
Sec. 10010.17 Public involvement.
(a) The public may be involved in the EA process when appropriate.
Public notification will be made of the availability of an EA document
(40 CFR 1506.6).
(b) The scoping process may be applied to an EA (40 CFR 1501.7).
Sec. 10010.18 Content.
(a) At a minimum, an EA will include brief discussions of the need
for the proposal, of alternatives as required by section 102(2)(E) of
NEPA, of the environmental impacts of the proposed action and such
alternatives, and a listing of agencies and persons consulted (40 CFR
1508.9(b)).
(b) In addition, an EA may be expanded to more fully describe the
proposal and a broader range of alternatives if this facilitates
planning and decision making.
(c) The level of detail and depth of impact analysis should
normally be limited to that needed to determine whether there are
significant environmental effects.
(d) An EA will contain objective and credible analyses which
support its environmental impact conclusions. It will not, in and of
itself, conclude whether or not an EIS will be prepared. This
conclusion will be made upon review of the EA by the responsible
official and documented in either a NOI or FONSI.
Sec. 10010.19 Format.
(a) An EA may be prepared in any format useful to facilitate
planning and decision making.
(b) An EA may be combined with any other planning or decision
making document; however, that portion which analyzes the environmental
impacts of the proposal and alternatives will be clearly and separately
identified and not spread throughout or interwoven into other sections
of the document.
Sec. 10010.20 Adoption.
(a) An EA prepared for a proposal before the Commission by another
agency, entity or person, including an applicant, may be adopted if,
upon independent evaluation by the responsible Commission official, it
is found to comply with this part and relevant provisions of the CEQ
regulations.
(b) When appropriate and efficient, a responsible Commission
official may augment such an EA when it is essentially, but not
entirely, in compliance in order to make it so.
[[Page 2224]]
(c) If an EA or augmented EA is adopted, the responsible Commission
official must prepare his/her own NOI or FONSI which also acknowledges
the origin of the EA and takes full responsibility for its scope and
content.
Subpart D. Environmental Impact Statements
Sec. 10010.21 Purpose.
This subpart provides supplemental instructions for implementing
those portions of the CEQ regulations pertaining to environmental
impact statements (EIS).
Sec. 10010.22 Statutory requirements (40 CFR 1502.3).
NEPA requires that an EIS be prepared by the responsible Federal
official. This official is normally the lowest-level official who has
overall responsibility for formulating, reviewing, or proposing an
action or, alternatively, has been delegated the authority or
responsibility to develop, approve, or adopt a proposal or action.
Preparation at this level will ensure that the NEPA process will be
incorporated into the planning process and that the EIS will accompany
the proposal through existing review processes.
Sec. 10010.23 Timing (40 CFR 1502.5).
(a) The feasibility analysis (go/no-go) stage, at which time an EIS
is to be completed, is to be interpreted as the stage prior to the
first point of major commitment to the proposal.
(b) An EIS need not be commenced until an application is
essentially complete; e.g., any required environmental information is
submitted, any consultation required with other agencies has been
conducted, and any required advance funding is paid by the applicant or
other appropriate party.
Sec. 10010.24 Page limits (40 CFR 1502.7).
An EIS should be as brief as possible and still convey the required
information. Normally this should be accomplished in less than 150
pages, though documents of up to 300 pages are acceptable for more
comprehensive issues. Where the text of an EIS for a complex proposal
or group of proposals appears to require more than the normally
prescribed limit of 300 pages, the Commission will ensure that the
length of such statements is no greater than necessary to comply with
NEPA, the CEQ regulations, and this part.
Sec. 10010.25 Supplemental environmental impact statements (40 CFR
1502.9).
(a) Supplement Environmental Impact Statements (SEIS) are only
required if such changes in the proposed action or alternatives, new
circumstances, or resultant significant effects are not adequately
analyzed in the previously prepared EIS.
(b) The Commission will consult with the Office of the Solicitor
prior to proposing to CEQ to prepare a final supplement without
preparing an intervening draft.
(c) If, after a Record of Decision has been executed based on a
final EIS, a described proposal is further refined or modified and if
there are only minor changes in effects or they are still within the
scope of the earlier EIS, an EA and FONSI may be prepared for
subsequent decisions rather than a SEIS. As identified in
Sec. 100010.61(b)(1)(i), changes having no potential for significant
environmental impact are categorically excluded from environmental
documentation requirements.
Sec. 10010.26 Format (40 CFR 1502.10).
(a) Proposed departures from the standard format described in the
CEQ regulations and this part must be approved by the Executive
Director.
(b) The section listing the preparers of the EIS will also include
other sources of information, including a bibliography or list of cited
references, when appropriate.
(c) The section listing the distribution of the EIS will also
briefly describe the consultation and public involvement processes
utilized in planning the proposal and in preparing the EIS, if this
information is not discussed elsewhere in the document.
(d) If CEQ's standard format is not used or if the EIS is combined
with another planning or decision making document, the section which
analyzes the environmental consequences of the proposal and its
alternatives will be clearly and separately identified and not
interwoven into other portions of or spread throughout the document.
Sec. 10010.27 Cover sheet (40 CFR 1501.11).
The cover sheet will indicate whether the EIS intended to serve any
other environmental review or consultation requirements pursuant to 40
CFR 1502.25.
Sec. 10010.28 Summary (40 CFR 1502.12).
The emphasis in the summary should be on those considerations,
controversies, and issues which significantly affect the quality of the
human environment.
Sec. 10010.29 Purpose and need (40 CFR 1502.13).
The purpose and need section may introduce a number of factors,
including economic and technical considerations and Commission
statutory missions, which may be outside the scope of the EIS. Care
should be taken to insure an objective presentation and not a
justification.
Sec. 10010.30 Alternatives including the proposed action (40 CFR
1502.14).
(a) As a general rule, the following guidance will apply:
(1) For internally initiated proposals; i.e., for those cases where
the Commission conducts or controls the planning process, both the
draft and final EIS shall identify the Commission's proposed action, or
preferred alternative.
(2) For externally initiated proposals; i.e., for those cases where
the Commission is reacting to an application or similar request, the
draft and final EIS shall identify the applicant's proposed action and
the Commission's preferred alternative unless another law prohibits
such an expression.
(3) Proposed departures from this guidance must be approved by the
Executive Director and the Office of the Solicitor.
(b) Mitigation measures to offset adverse effects of the proposed
action or its alternatives are not necessarily independent of these
actions and should be incorporated into and analyzed as a part of the
proposal and appropriate alternatives. Where appropriate, major
mitigation measures may be identified and analyzed as separate
alternatives in and of themselves where the environmental consequences
are distinct and significant enough to warrant separate evaluation.
Sec. 10010.31 Appendix (40 CFR 1502.18).
If an EIS is intended to serve other environmental review or
consultation requirements pursuant to 40 CFR 1502.25, any more detailed
information needed to comply with these requirements may be included as
an appendix.
Sec. 10010.32 Tiering (40 CFR 1502.20).
An environmental document prepared by or for the Commission may
incorporate by reference, either in part or in its entirety, an earlier
environmental impact statement or environmental assessment when the
subject matter of the earlier document is directly applicable. The
Commission may also choose to prepare, or cause to have prepared, a
broad environmental document to cover an entire program or,
alternatively, a series of projects within a distinct geographic area,
with the intent of later undertaking project-specific documentation and
``tiering'' to
[[Page 2225]]
the more general statement or assessment.
Sec. 10010.33 Incorporation by reference (40 CFR 1502.21).
Citations of specific topics will include the pertinent page
numbers. All literature references will be listed in the bibliography.
Sec. 10010.34 Incomplete or unavailable information (40 CFR 1502.22).
The references to overall costs in 40 CFR 1502.22 of the CEQ
regulations are not limited to market costs, but may also include other
costs such as social costs due to delay.
Sec. 10010.35 Methodology and scientific accuracy (40 CFR 1502.24).
Conclusions about environmental effects will be preceded by an
analysis that supports that conclusion unless explicit reference by
footnote is made to other supporting documentation that is readily
available to the public.
Sec. 10010.36 Environmental review and consultation requirements (40
CFR 1502.25).
(a) The Commission will maintain a list of applicable environmental
review and consultation requirements pursuant to other federal or state
laws and regulations and will make this available to interested
parties.
(b) If the EIS is intended to serve as the vehicle to fully or
partially comply with the requirements of other federal or state laws
and regulations, the associated analyses, studies, or surveys will be
identified as such and discussed in the text of the EIS and the cover
sheet will so indicate. Any supporting analyses or reports will be
incorporated by reference or included as an appendix and shall be sent
to reviewing agencies as appropriate in accordance with applicable
regulations or procedures.
Sec. 10010.37 Inviting comments (40 CFR 1503.1).
(a) Comments from State agencies will be requested through
procedures established by the Governor pursuant to Executive Order
12372, and may be requested from local agencies through these
procedures to the extent that they include the affected local
jurisdictions.
(b) When the proposed action may affect the environment of an
Indian reservation, comments will be requested from the Indian tribe
through the tribal governing body, unless the tribal governing body has
designated an alternate review process.
Sec. 10010.38 Response to comments (40 CFR 1503.4).
(a) Preparation of a final EIS need not be delayed in those cases
where a Federal agency, from which comments are required to be obtained
(40 CFR 1503.1(a)(l)), does not comment within the prescribed time
period. Informal attempts will be made to determine the status of any
such comments and every reasonable attempt should be made to include
the comments and a response in the final EIS.
(b) When other commentors are late, their comments should be
included in the final EIS to the extent practicable.
Sec. 10010.39 Elimination of duplication with state and local
procedures (40 CFR 1506.2).
The Commission will incorporate in its appropriate program
regulations provisions for the preparation of an EIS by a State agency
to the extent authorized in section 102(2)(D) of NEPA.
Sec. 10010.40 Combining documents (40 CFR 1506.4).
Incorporating documentation requirements of other environmental
regulations into an EIS is both acceptable and desirable. If the EIS is
combined with another planning or decision making document, the section
which analyzes the environmental consequences of the proposal and its
alternatives will be clearly and separately identified and not
interwoven into other portions of or spread throughout the document.
Sec. 10010.41 Commission responsibility (40 CFR 1506.5).
A Commission sponsored environmental document may be prepared by
the Commission, a joint-lead agency, a contractor selected or approved
by the Commission, or, when appropriate, a cooperating agency.
Regardless, the Commission has the responsibility to independently
evaluate and draw appropriate conclusions. Following the Commission's
preparation or independent evaluation of and assumption of
responsibility for an environmental document, an applicant may print it
provided the applicant is bearing the cost of the document pursuant to
other laws.
Sec. 10010.42 Public involvement (40 CFR 1506.6).
The Commission will adhere to CEQ requirements regarding the use of
public notices, public meetings, public review of NEPA documents, and
other techniques to ensure that the public has ample opportunity to
provide input into the proceedings and to ensure that the Commission
will give due consideration to this input.
Sec. 10010.43 Further guidance (40 CFR 1506.7).
The Commission may provide further guidance concerning NEPA
pursuant to its organizational responsibilities and through
supplemental directives.
Sec. 10010.44 Proposals for legislation (40 CFR 1506.8).
(a) When appropriate, the Commission shall identify in the annual
submittal to the Office of Management and Budget of the Commission's
proposed legislative program any requirements for and the status of any
environmental documents.
(b) When required, the Commission shall ensure that a legislative
EIS is included as a part of the formal transmittal of a legislative
proposal to the Congress.
Sec. 10010.45 Time periods (40 CFR 1506.10).
(a) The minimum review period for a draft EIS will be sixty (60)
days from the date of transmittal to the Environmental Protection
Agency.
(b) The Commission will be responsible for consulting with the
Environmental Protection Agency and/or CEQ about any proposed
reductions in time periods or any extensions of time periods proposed
by those agencies.
Subpart E. Relationship to Decision-Making
Sec. 10010.46 Purpose.
This subpart provides supplementary instructions for implementing
those portions of the CEQ regulations pertaining to decision-making.
Sec. 10010.47 Pre-decision referrals to CEQ (40 CFR 1504.3).
(a) Upon receipt of advice that another Federal agency intends to
refer a Commission matter to CEQ, the Commission will immediately meet
with that Federal agency to attempt to resolve the issues raised.
(b) Upon any referral of a Commission matter to CEQ by another
Federal agency, the Executive Director will be responsible for
coordinating the Commission's position.
Sec. 10010.48 Decision-making procedures (40 CFR 1505.1).
(a) Procedures by which the Commission makes decisions are
specified in 43 CFR part 10000.
(b) The Commission will incorporate in its formal decision-making
procedures provisions for consideration of environmental factors and
relevant environmental documents. The major decision points for
principal programs likely to have significant environmental effects
will be clearly identified.
[[Page 2226]]
(c) Relevant environmental documents, including supplements, will
be included as part of the record in formal rule making or adjudicatory
proceedings.
(d) Relevant environmental documents, comments, and responses will
accompany proposals through existing review processes so that
Commission officials use them in making decisions.
(e) The decision-maker will consider the environmental impacts of
the entire range of alternatives described in any relevant
environmental document; the range of these alternatives must encompass
the actual alternatives considered by the decision-maker.
Sec. 10010.49 Record of decision (40 CFR 1505.2).
(a) Any decision documents prepared for proposals involving an EIS
may incorporate all appropriate provisions of 40 CFR 1505.2 (b) and
(c).
(b) If a decision document incorporating these provisions is made
available to the public following a decision, it will serve the purpose
of a record of decision.
Sec. 10010.50 Implementing the decision (40 CFR 1505.3).
The terms ``monitoring'' and ``conditions'' in 40 CFR 1505.3 of the
CEQ regulations will be interpreted as being relevant to factors
affecting the quality of the human environment.
Sec. 10010.51 Limitations on actions (40 CFR 1506.1).
The Executive Director will notify the Chairman of the Commission
and the Office of the Solicitor of any situations where Commission or
applicant action would, if taken prior to completion of a NEPA
proceeding, potentially have an adverse environmental impact or limit
the choice of reasonable alternatives.
Sec. 10010.52 Timing of actions (40 CFR 1506.10).
The Commission will consult with the Office of the Solicitor before
making any request for reducing the time period before a decision or
action.
Sec. 10010.53 Emergencies (40 CFR 1506.11).
In the event of an unanticipated emergency situation, the
Commission will immediately take any necessary action to prevent or
reduce risks to public health or safety or serious resource losses and
then expeditiously consult with the Office of the Solicitor about
compliance with NEPA. The Commission will also be responsible for
consulting with CEQ.
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Subpart F. Managing the NEPA Process
Sec. 10010.54 Purpose.
This subpart provides supplemental instruction for implementing
those provisions for the CEQ regulations pertaining to procedures for
implementing and managing the NEPA process.
Sec. 10010.55 Organization for environmental quality.
(a) Executive Director. The Executive Director is responsible for
providing advice and assistance to the Commission on matters pertaining
to environmental quality and for overseeing and coordinating the
Commission's compliance with NEPA, Executive Order 11514 as amended by
Executive Order 11991, the CEQ regulations, and this part.
(b) NEPA Coordinator. The Executive Director will designate
organizational elements or individuals, as appropriate, to be
responsible for overseeing matters pertaining to the environmental
effects of the Commission's plans and programs. The individual(s)
assigned these responsibilities should have management experience or
potential, understand the Commission's planning and decision making
processes, and be well trained in environmental matters, including the
Commission's policies and procedures so that his/her/their advice has
significance in the Commission's planning and decisions.
Sec. 10010.56 Approval of EISs.
The Chairman of the Commission (Chairman), acting on the part of
the full Commission, is authorized to approve an EIS. The Chairman may
further assign the authority to approve the EIS if he or she chooses.
The Executive Director will make certain that there are adequate
safeguards to assure that EISs and other environmental documents comply
with NEPA, the CEQ regulations, this part, and other relevant
Commission procedures.
Sec. 10010.57 List of specific compliance responsibilities.
(a) The Commission staff shall:
(1) As deemed necessary, prepare a NEPA handbook or adapt
applicable materials prepared by other agencies, providing guidance on
how to implement NEPA in principal program areas.
(2) Prepare program regulations or directives for applicants.
(3) Propose categorical exclusions.
(4) Prepare EAs.
(5) Recommend whether to prepare an EIS.
(6) Prepare NOIs and FONSIs.
(7) Prepare EISs.
(b) The Executive Director shall:
(1) Approve agency handbooks and other NEPA guidance
(2) Approve regulations or directives for applicants.
(3) Approve categorical exclusions.
(4) Approve EAs.
(5) Decide whether to prepare an EIS.
(6) Approve NOIs and FONSIs.
(7) Make recommendations regarding the adequacy of EISs.
(c) The Chairman of the Commission, acting on behalf of the full
Commission, shall:
(1) Concur with regulations or directives for applicants.
(2) Concur with EAs.
(3) Approve EISs.
Sec. 10010.58 Information about the NEPA process.
The Executive Director will identify staff contacts where
information about the NEPA process and the status of EISs may be
obtained.
Subpart G. Actions Requiring an EIS and Actions Subject to
Categorical Exclusion
Sec. 10010.59 Purpose.
This subpart provides supplemental instruction for determining
major actions requiring an EIS and for determining actions that are
categorically excluded from NEPA.
Sec. 10010.60 Actions normally requiring an EIS.
(a) The following proposals will normally require the preparation
of an EIS:
(1) Establishment of major new refuges or wildlife management
areas, fish hatcheries, and major additions to such installations.
(2) Master development and/or management plans for major new
installations.
(3) Management plans for established installations where major new
developments or substantial changes in management practices are
proposed.
(b) If for any of these proposals it is initially decided not to
prepare an EIS, an EA will be prepared in accordance with 40 CFR
1501.4(e)(2).
Sec. 10010.61 Actions subject to categorical exclusion.
(a) General categorical exclusions. The following actions are
categorical exclusions (CX). However, environmental documents will be
prepared for individual actions subject to CX if the exceptions listed
in Sec. 10010.62 apply.
(1) Personnel actions and investigations and personnel services
contracts.
[[Page 2227]]
(2) Internal organizational charges and facility and office
reductions and closings.
(3) Routine financial transactions, including such things as
salaries and expenses, procurement contracts, guarantees, financial
assistance, income transfers, audits, fees, bonds and royalties.
(4) Legal transactions, including such things as investigations,
patents, claims, legal opinions, and judicial activities including
their initiation, processing, settlement, appeal or compliance.
(5) Monitoring actions, including inspections, assessments,
administrative hearings and decisions; when the regulations themselves
or the instruments of regulations (leases, permits, licences, etc.)
have previously been covered by the NEPA process or exempt from it.
(6) Non-destructive data collection, inventory (including field,
aerial and satellite surveying and mapping), study, and research
activities.
(7) Routine and continuing government business, including such
things as supervision, administration, activities having limited
context and intensity, for example, activities of limited size and
magnitude of short-term effects.
(8) Management formulation, allocation, transfer and reprogramming
of the Commission's budget at all levels. This does not exclude the
preparation of environmental documents for proposals included in the
budget when otherwise required.
(9) Legislative proposals of an administrative or technical nature,
including such things as changes in authorizations for appropriations,
and minor boundary changes and land transactions; or having primarily
economic, social, individual or institutional effects; and comments and
reports on referrals of legislative proposals.
(10) Policies, directives, regulations, and guidelines of an
administrative, financial, legal, technical, or procedural nature; or
the environmental effects of which are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will be
subject later to the NEPA process, either collectively or case-by-case.
(11) Activities which are educational, informational, advisory or
consultative to other agencies, public and private entities, visitors,
individuals or the general public.
(12) Cooperative agreements and interagency agreements.
(b) Specific categorical exclusions. The following actions are
categorical exclusions (CX).
(1) General:
(i) Changes or amendments to an approved action when such changes
have no potential for causing substantial environmental impact.
(ii) Personnel training, environmental interpretation, public
safety efforts and other educational activities.
(iii) The issuance and modification of procedures, including
manuals, orders and field rules, when the impacts are limited to
administrative or technological effects.
(iv) The acquisition of land or water rights in accordance with the
Commission's procedures, when the acquisition is from a willing seller,
the acquisition planning process has been performed in coordination
with the affected public and essentially the existing use will be
continued.
(2) Resource management:
(i) Research, inventory and information collection activities
directly related to the conservation of fish and wildlife resources
which involve negligible animal mortality or habitat destruction, and
no introduction of either exotic organisms or contaminants.
(ii) The operation, maintenance and management of existing
facilities and improvements (i.e. structures, roads), including
renovations and replacements which result in no or only minor changes
in the capacity, use or purpose of the affected facilities.
(iii) The addition of small structures or improvements in the area
of existing facilities, which result in no or only minor changes in the
capacity, use or purpose of the affected area.
(iv) The reintroduction (stocking) of native or established species
into suitable habitat within their historic or established range.
(v) Minor changes in the amounts or types of public use on
Commission managed land or land acquired with Commission funds, in
accordance with existing regulations, management plans and procedures.
(vi) Consultation and technical assistance activities directly
related to the conservation of fish and wildlife resources.
(3) Use of Commission-managed or funded lands:
(i) The issuance of special approvals for public use of Commission-
managed land or land acquired with Commission funds, which maintains
essentially the same level of use and does not continue a level of use
that has resulted in adverse environmental effects.
(ii) Permitting a limited additional use of an existing right-of-
way over Commission-managed land or land acquired with Commission
funds, such as the addition of new power or telephone lines where no
new structures or improvements are required, or the addition of buried
lines.
(iii) The issuance or reissuance of rights-of-way and special use
approvals for Commission-managed land or land acquired with Commission
funds that result in no or negligible environmental effects.
(iv) The reissuance of grazing or agricultural use approvals for
Commission-managed land or land acquired with Commission funds which do
not increase the level of use nor continue a level of use that has
resulted in adverse environmental effects.
(4) Funding for activities by others:
(i) Planning grants or other funding for planning activities and
the administrative determination that plans were prepared in accordance
with prescribed standards. However, when the plan is submitted to the
Commission for implementation, the program proposed by the plan is
subject to the NEPA process.
(ii) Grants or other funding for categorically excluded actions
listed in paragraphs (b) (1) through (3) of this section.
(5) Inter-agency Initiatives: Actions where the Commission has
concurrence or co-approval with another agency and the action is a
categorical exclusion for that agency.
(6) Transfer of the operations and maintenance of Federal lands,
water, or facilities to water districts, recreation agencies, fish and
wildlife agencies, or other entities where the anticipated operation
and maintenance activities are agreed to in a contract or a memorandum
of agreement, follow approved Commission policy, and no major change in
operation and maintenance is anticipated or a proposed major change in
operation and maintenance has previously been the subject of an
appropriate NEPA document.
Sec. 10010.62 Exceptions to categorical exclusions.
The following exceptions apply to individual actions within
categorical exclusions (CX). Environmental documents must be prepared
for actions which may:
(a) Have significant adverse effects on public health or safety.
(b) Have adverse effects on such unique geographic characteristics
as historic or cultural resources, parks, recreation or refuge lands,
wilderness areas, wild or scenic rivers, sole or principal drinking
water aquifers, prime farmlands, wetlands, floodplains, or ecologically
significant or critical areas, including those listed on the
[[Page 2228]]
Department of the Interior's National Register of Natural Landmarks.
(c) Have highly controversial environmental effects.
(d) Have highly uncertain and potentially significant environmental
effects or involve unique or unknown environmental risks.
(e) Establish a precedent for future action or represent a decision
in principle about future actions with potentially significant
environmental effects.
(f) Be directly related to other actions with individually
insignificant but cumulatively significant environmental effects.
(g) Have adverse effects on properties listed or eligible for
listing on the National Register of Historic Places.
(h) Have adverse effects on species listed or proposed to be listed
on the List of Endangered or Threatened Species, or have adverse
effects on designated Critical Habitat for these species.
(i) Require compliance with Executive Order 12988 (Floodplain
Management), Executive Order 11990 (Protection of Wetlands), or the
Fish and Wildlife Coordination Act. However, an action may be
categorically excluded following applicable reviews if the action is
found to be in conformance with the applicable law or executive order.
(j) Threaten to violate a Federal, State, local or tribal law or
requirement imposed for the protection of the environment.
[FR Doc. 96-974 Filed 1-24-96; 8:45 am]
BILLING CODE 4310-05-P
