[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Proposed Rules]
[Pages 39951-39963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18687]
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PRESIDIO TRUST
36 CFR Part 1010
RIN 3212-AA02
Management of the Presidio: Environmental Quality
AGENCY: The Presidio Trust.
ACTION: Proposed rule.
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SUMMARY: The Presidio Trust (Trust) was created by Congress in 1996 to
manage a portion of the former U.S. Army base known as the Presidio, in
San Francisco, California. Pursuant to law, administrative jurisdiction
of approximately 80 percent of this property was transferred from the
National Park Service (NPS), Department of the Interior (DOI), to the
Trust as of July 1, 1998. By publication in the Federal Register on
June 30, 1998 (63 FR 35694), the Trust adopted a final interim rule for
interim management of the area under its administrative jurisdiction.
This proposed rule would supplement those requirements with regulations
implementing the National Environmental Policy Act of 1969 (NEPA) and
would replace the Trust's interim procedures and guidelines for
implementing NEPA, the availability of which was noticed in the Federal
Register on September 14, 1998 (63 FR 49142). Public comment is invited
on this proposed rule and will be considered by the Trust in
promulgating a final rule.
DATES: Comments on this rulemaking must be received by September 21,
1999.
ADDRESSES: Written comments on this proposed rule must be sent to Karen
A. Cook, General Counsel, the Presidio Trust, 34 Graham Street, P.O.
Box 29052, San Francisco, CA 94129-0052.
FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel, the
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052, Telephone: 415-561-5300.
SUPPLEMENTARY INFORMATION:
Background
The Presidio Trust is a wholly-owned government corporation created
pursuant to Title I of the Omnibus Parks and Public Lands Act of 1996,
Public Law 104-333, 110 Stat. 4097 (the Trust Act). Pursuant to section
103(b) of the Trust Act, the Secretary of the Interior transferred
administrative jurisdiction to the Trust of all of Area B of the former
Presidio Army Base, as shown on the map referenced in the statute, on
July 1, 1998.
Section 104(j) of the Trust Act authorizes the Trust, ``in
consultation with the Secretary [of the U.S. Department of the
Interior], to adopt and to enforce those rules and regulations that are
applicable to the Golden Gate National Recreation Area and that may be
necessary and appropriate to carry out its duties and
responsibilities'' under the Trust Act. Consistent with that authority
as well as regulations of the Council on Environmental Quality (CEQ) at
40 CFR 1507.3(a), the Trust has adopted interim procedures and
guidelines for implementing NEPA, in consultation with CEQ. These
interim procedures and guidelines consist of those of the National Park
Service, to the extent they do not conflict with the Presidio Trust Act
or regulations of the Presidio Trust. Notice of the Trust's adoption of
these interim procedures was published in the Federal Register on
September 14, 1998 (63 FR 49142). These interim procedures and
guidelines will remain in effect until the Trust adopts final
procedures and guidelines, as proposed herein, which will replace the
interim procedures and guidelines in their entirety.
Prior to proposing these regulations, the Trust consulted with CEQ
pursuant to its regulations, 40 CFR 1507.3(a). The Trust has also
consulted with officials of the Department of the Interior and the
National Park Service designated by the Secretary of the Interior to
facilitate such consultation. The Trust anticipates that consultation
with these and other interested entities will continue during the
comment period on these proposed regulations.
The Trust is providing for a public comment period of 60 days on
these regulations. All comments, including names and addresses, when
provided, will be placed in the public record and made available for
public inspection and copying. The Trust will consider each comment
received within this period and then publish final regulations in the
Federal Register. That promulgation will include a discussion of any
comments received and any amendments made to these proposed regulations
as a result of the comments.
Foundations of This Rulemaking
In drafting these proposed regulations, the Trust primarily
consulted the NEPA procedures and guidelines of the National Park
Service, the Department of Housing and Urban Development (HUD), and the
former Pennsylvania Avenue Development Corporation (PADC), a wholly-
owned government corporation that had responsibility for administering
projects and property along the corridor from the White House to the
Capitol in Washington, D.C. Although parts of the
[[Page 39952]]
NEPA procedures of each of these federal entities are incorporated into
the Trust's proposed regulations, the Trust relied on the PADC
regulations as the primary model for their structure and format. These
regulations of the PADC are found at 36 CFR part 907.
The Trust chose the PADC regulations as its model for a number of
reasons. First, there are many similarities between the Trust and the
PADC. Both were created to manage a relatively large area of property
of national interest in an urban locale. Like the PADC, the Trust is a
wholly-owned federal government corporation and is expected to make use
of private sector resources and approaches in meeting its goals on
behalf of the public. Both the Trust and the PADC were designed to be
directed by a Board of Directors including private individuals and
public officials, and their statutory authorities are similar. Second,
the Trust found the PADC regulations to be appropriately concise and
flexible for an organization of the Trust's size that is involved to a
great extent in planning, land use, construction, and leasing
activities. Third, the PADC regulations were published in the Federal
Register following notice, public comment, and CEQ review, and they
have been formally promulgated as regulations in the Code of Federal
Regulations. Finally, like the PADC at the time that its NEPA
regulations were adopted, the Trust is in a position to refer to and
build upon significant planning and environmental review work that has
already been completed for the area under its administrative
jurisdiction, undergone public review, and been approved by appropriate
agencies. This work has been documented in the Final General Management
Plan Amendment (July 1994) for the Presidio of San Francisco (the
``Plan''), prepared by the NPS, and in the Final Environmental Impact
Statement (July 1994) (the ``Plan EIS'') prepared in conjunction with
the Plan by the NPS. The Trust is required to exercise many of its
authorities in accordance with the general objectives of the General
Management Plan Amendment. Trust Act, section 104(a).
Although the Trust did not rely on them as a model for the
structure of its NEPA regulations, the Trust also looked both to the
NEPA regulations of the Department of Housing and Urban Development
(HUD) and to the NPS procedures and guidelines to provide substantive
content in certain areas, particularly concerning categorical
exclusions from further NEPA review. The current HUD regulations are
found at 24 CFR part 50 and contain a categorical exclusion that is
potentially applicable to the anticipated activities of the Trust with
respect to the residential structures in the area under its
administrative jurisdiction. The current NPS procedures and guidelines
are found in ``NPS-12: National Environmental Policy Act Guidelines,''
which was originally adopted in 1982 and, while advisory, serves as a
permanent directive to the NPS. NPS is in the process of developing a
Director's Order and NPS Handbook 12 to replace the 1982 NPS-12. A
draft of the handbook is currently available on the Internet at http://
www.nps.gov/planning/nepa/!nps12.pdf. It is to this draft that the
Trust has referred in drafting its proposed NEPA regulations. Although
the scope and structure of this 129-page draft is beyond what is
necessary for the Trust's purposes, and although it interweaves
guidance on certain authorities that are inapplicable to the Trust, a
number of categorical exclusions identified in the NPS draft are
potentially applicable to the anticipated activities of the Trust and
therefore have been incorporated into these proposed regulations.
Section-by-Section Analysis
Although these regulations adopt the general structure of the PADC
regulations, they have been reorganized in order to more clearly
describe the usual order in which NEPA issues are considered.
Specifically, the PADC regulations first describe ``actions that
normally require an EIS,'' then ``actions that do not require an EA or
an EIS,'' and then ``actions that normally require an EA.'' In the
normal course, the responsible agency official first determines whether
an action is one that normally does not require either an EA or an EIS,
i.e., one that is categorically excluded. If it is not such an action,
the responsible agency official then considers whether the action is
one that normally requires an EIS, and if so, an EIS is usually
prepared. If the action is not one that is categorically excluded and
also not one that normally requires an EIS, then an EA is usually
prepared, following which a determination is made as to whether an EIS
should be prepared or a finding of no significant impact (FONSI) should
be made. These regulations have been reordered to parallel this
customary course of decision-making.
Section 1010.1 Policy
This section is adapted almost verbatim from Sec. 907.1 of this
title. Paragraph (d) of this section has been revised slightly to
recognize that the Trust has a broader mission than the PADC.
Section 1010.2 Purpose
This section is adapted almost verbatim from Sec. 907.2 of this
title and has been revised simply to be applicable to the Trust and to
provide a precise reference to the CEQ regulations implementing NEPA.
Section 1010.3 Definitions
In modeling these proposed regulations on the existing regulations
of the NPS and DOI, the Trust consistently changed a variety of terms
used in the existing regulations as appropriate to the Trust and its
separate mission, organization and statutory authority. First,
references to the ``Corporation'' were changed to the ``Trust.''
Second, the term ``development area'' was replaced by ``Presidio Trust
Area,'' as defined in Sec. 1001.4 of the Trust's proposed regulations.
Third, the definitions of ``Plan'' and ``Final EIS'' were changed to
reflect the full titles of the management plan (referred to herein as
the ``Plan'') and environmental impact statement (referred to herein as
the ``Plan EIS'') that apply to the Presidio Trust Area as opposed to
the PADC area. (Although these documents were prepared by the NPS, the
Trust is a successor in interest to the NPS with respect to compliance
with NEPA and other environmental compliance statutes. Trust Act,
section 104(c).) Fourth, definitions for the authorizing statute and
governing body are unnecessary in this section, since they already
appear in Sec. 1001.4 of this chapter. Fifth, other definitions were
eliminated because they appear infrequently in the body of the
regulations.
More substantive changes were made to the definitions as follows:
--The term ``Private Developer'' was changed to ``project applicant,''
since projects that may be proposed for the Presidio Trust Area are
likely to encompass a wider variety of work than simply development by
private parties. The definition was also expanded to include
partnerships and corporations, in order to make clear that the form of
organization is immaterial to its status as a project applicant.
--The acronyms ``EIS'' for environmental impact statement and ``EA''
for environmental assessment were used in order to make the regulations
more concise and easier to read. These acronyms are in common usage
today among agencies, public interest groups, courts, and the media.
--The definition of ``decision-maker'' was shortened to simply ``the
Board or its designee'' in order to be
[[Page 39953]]
consistent with other Trust regulations and practices.
Section 1010.4 Responsible Trust Official
This section combines the provisions of Sec. Sec. 907.4 and 907.5
of this title in order to keep the regulations concise. The provisions
of Sec. 907.4 of this title are included in paragraph (a), and the
provisions of Sec. 907.5 are included in paragraph (b). Minor
modifications to these provisions include the following:
--A sentence has been added at the end of paragraph (a) to clarify that
ultimate responsibility and authority for implementation of NEPA with
respect to the Trust's activities continues to rest with the Executive
Director and the Board of Directors. Under current Trust practice, the
Executive Director is entitled to overrule or alter decisions of any
Trust employee, and the Board is entitled to overrule or alter
decisions of the Executive Director.
--In paragraph (b)(6), the term ``with the assistance of the Office of
the General Counsel'' has been changed to ``in consultation with the
General Counsel'' to reflect that the responsible Trust official should
cooperatively consult with and seek the advice of the General Counsel
and not simply be provided with the General Counsel's assistance.
--In paragraph (b)(8), the phrase concerning submittal of EIS's with
proposed legislation has been removed since this issue is dealt with
elsewhere in the regulations.
--In paragraph (b)(10), the reference to the Paperwork Reduction Act
has been removed because it is unnecessary. The Trust intends to
fulfill the requirements of this law, but need not restate it in the
Code of Federal Regulations.
--A provision has been added, at paragraph (b)(12), allowing the
responsible Trust official to designate other Trust employees to
execute these duties under his or her supervision. This is necessary
for the sake of administrative flexibility.
Section 1010.5 Major Decision Points
This section is based on Sec. 907.6 of this title but has been
revised for clarity. Most significantly, paragraph (b)(2) now makes
clear that (1) A determination on whether to require an EA or EIS must
be made prior to moving beyond the conceptual or preliminary study
stage if the proposed action or project is not categorically excluded,
and (2) A determination on whether to require an EIS can be made either
with or without the completion of an EA.
Section 1010.6 Determination of Requirement for EA or EIS
This section is adapted from Sec. 907.7 of this title and has been
revised to reflect the usual order in which environmental review
determinations are made, as discussed above. When appropriate, the
Trust anticipates that this determination will be documented and made
available to the public.
Section 1010.7 Actions That Do Not Require an EA or an EIS
This section is adapted from Sec. 907.10 of this title and Appendix
A to part 907 of this title. Paragraph (a) restates the general rule
provided in the first paragraph of Sec. 907.10. Paragraph (b) restates
the criteria set by Sec. 907.10(a). For the sake of clarity and ease of
use, paragraph (c) provides the list of categorical exclusions without
reference to an appendix. In accordance with 40 CFR 1508.4, paragraph
(d) provides criteria for determining that an otherwise applicable
categorical exclusion should not be utilized because of extraordinary
circumstances.
The first criterion in paragraph (b) has been drafted in light of
section 104(c) of the Trust Act, which provides that the Trust is
considered a successor in interest to the National Park Service with
respect to compliance with the National Environmental Policy Act, 42
U.S.C. sec. 4321 et seq. and other environmental compliance statutes.
In preparation for the transfer of the Presidio from the Army, the NPS
undertook an extensive planning effort, which culminated in the Plan
and the Plan EIS. The Trust Act (section 104(a)) requires the Trust to
use its key authorities in accordance with the general objectives of
the Plan, among other things. The Trust therefore anticipates that the
environmental effects of many of the actions it considers will have
already been analyzed in the Plan EIS. Similarly, the Trust anticipates
that, in accordance with 1010.9(c) and guidance provided by CEQ,
proposed actions whose environmental effects may not have already been
adequately analyzed in the Plan EIS will be considered in a NEPA
document that will tier off of the Plan EIS. The criterion in the PADC
regulations concerning estimated cost of the project has been removed
in recognition of the fact that even inexpensive actions may have the
potential for significant environmental impacts. In its place are
inserted two additional criteria (at (b)(2) and (b)(4)) concerning
whether additional analysis is necessary.
Most of the categorical exclusions listed in paragraph (c) were
derived from the PADC regulations and the draft NPS-12 guidelines. The
PADC regulations contain ten categorical exclusions (identified herein
as PADC-i through PADC-x); the draft NPS-12 guidelines contain 17
categorical exclusions for which no formal documentation is necessary
(identified herein as letters NPS-A through NPS-Q in section 3.3 of the
draft NPS-12 guidelines) and 54 categorical exclusions for which
minimal documentation is necessary (identified herein as NPS-A1 through
NPS-A10, NPS-B1 through NPS-B8, NPS-C1 through NPS-C19, NPS-D1 through
NPS-D4, NPS-E1 through NPS-E7, and NPS-F1 through NPS-F6 of section 3.4
of the draft NPS-12 guidelines). In addition, because the Trust has
administrative jurisdiction of a variety of residential housing units,
one of the categorical exclusions was derived from the NEPA regulations
of the Department of Housing and Urban Development (HUD), found at 24
CFR 50.20. These HUD regulations contain six categorical exclusions
(identified herein as HUD-1 through HUD-6).
These categorical exclusions of other agencies were combined and
reorganized in order to read more clearly and apply more precisely to
the types of actions that are likely to be undertaken in the Presidio
Trust Area without significant environmental effects. The introductory
paragraph also clarifies that these exclusions apply regardless of
whether the Trust is undertaking the action, is participating in the
action with an outside entity or entities, or is approving the action
to be undertaken by an outside entity or entities. The following chart
identifies the source of and discusses each categorical exclusion
included in these proposed regulations:
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Proposed categorical exclusion Source(s) and discussion
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(1) Personnel actions and investigations and personal This categorical exclusion was taken directly from NPS-
services contracts. A. In addition, PADC-i covers ``personnel actions.''
[[Page 39954]]
(2) Administrative actions and operations directly This categorical exclusion was taken from PADC-ii,
related to the operation of the Trust (e.g., purchase adapted to the Trust, and modified to included
of furnishings, services, and space acquisition or maintenance facilities.
conversion for the Trust offices or maintenance
facilities).
(3) Internal organizational changes and facility and This categorical exclusion was taken from NPS-B and
office expansions, reductions, and closings. modified to include expansions of the Trust's
facilities and offices.
(4) Routine financial transactions, including such This categorical exclusion was taken from NPS-C and
things as salaries and expenses, procurement, modified to include procurement of all sorts and not
guarantees, financial assistance, income transfers, simply procurement contracts, since the Trust by law
audits, fees, bonds and royalties. operates under different procurement requirements than
does the NPS.
(5) Management, formulation, allocation, transfer and This categorical exclusion was taken from NPS-G.
reprogramming of the Trust's budget.
(6) Routine and continuing government business, This categorical exclusion was taken directly from NPS-
including such things as supervision, administration, F.
operations, maintenance, and replacement activities
having limited context and intensity (limited size and
magnitude or short-term effects).
(7) Preparation, issuance, and submittal of This categorical exclusion combines NPS-L and NPS-N.
publications and routine reports. Although NPS-N applies only to routine reports
required by law or regulation, that limitation has
been dropped here in recognition of the fact that the
Trust will likely prepare routine reports from time to
time at its own initiative, but that will nevertheless
have no significant environmental impacts.
(8) Activities which are educational, informational, or This categorical exclusion combines the categorical
advisory (including interpretive programs), or exclusions of NPS-J, NPS-M, NPS-Q, and NPS-B3.
otherwise in consultation with or providing technical
assistance to other agencies, public and private
entities, visitors, individuals, or the general public.
(9) Legislative proposals of an administrative or This categorical exclusion was taken almost verbatim
technical nature, including such things as changes in from NPS-H.
authorizations for appropriations or financing
authority, minor boundary changes and land
transactions; or having primarily economic, social,
individual or institutional effects, as well as and
comments and reports on legislative proposals.
(10) Promulgation of regulations and requirements, or This categorical exclusion was taken from NPS-A8 and
amendments thereto, provided such actions do not: (i) modified to make clear that it covers both
increase public use to the extent of compromising the promulgation of new regulations and requirements and
nature and character of the area or causing physical modification of existing regulations and requirements.
damage to it; (ii) introduce non-compatible uses which
might compromise the nature and characteristics of the
area or cause physical damage to it; (iii) conflict
with adjacent ownerships or land uses; or (iv) cause a
nuisance to adjacent owners or occupants.
(11) Proposal, adoption, revision, and termination of This categorical exclusion was taken from NPS-I. The
policies, directives, regulations, and guidelines of words ``proposal, adoption, revision, and
an administrative, financial, legal, technical, or termination'' were included to describe actions
procedural nature, the environmental effects of which related to the items listed in NPS-I. In addition,
are too broad, speculative, or conjectural to lend this categorical exclusion does not include the
themselves to meaningful environmental analysis. restriction in NPS-I concerning such policies, etc.,
being subject to later review under NEPA, either
collectively or on a case-by-case basis. If such
policies, etc., do have environmental effects that
lend themselves to meaningful environmental analysis
in the future, then those effects will be reviewed
under NEPA at that time.
(12) Preparation, approval, coordination, and This categorical exclusion is derived primarily from
implementation of plans, including priorities, NPS-B4 and includes language from NPS-B5 and NPS-E6.
justifications, and strategies, for non-manipulative In addition, the terms ``preparation, approval,
and non-destructive research, monitoring, coordination, and implementation'' were added in order
inventorying, and information gathering. to cover the type of items listed in NPS-B5 (i.e.,
``statements for management, outlines of planning
requirements, and agreements between NPS offices for
plans and studies''). The term ``non-destructive'' was
added from NPS-E6.
(13) Identification, nomination, certification, and This categorical exclusion is derived from NPS-E5. The
determination of eligibility of properties for listing term ``biosphere reserves'' was removed because it is
in the National Register of Historic Places and the unlikely to be applicable in light of the fact that
National Historic Landmark and National Natural the Golden Gate National Recreation Area is already a
Landmark Programs. part of a biosphere reserve. Similarly, the term
``development of standards'' was removed because the
Presidio Trust does not anticipate engaging in such
activities.
(14) Minor or temporary changes in amounts or types of This categorical exclusion combines NPS-D1, NPS-D2, and
visitor use for the purpose of ensuring visitor safety NPS-D3 into a single item. It adds the concept of
or resource protection, minor changes in programs or ``temporary'' changes in amounts or types of visitor
regulations pertaining to visitor activities, and use. It also includes within its ambit short-term
approval of permits for special events or public leases of no longer than three months, provided that
assemblies and meetings, as well as leases for use of such leases entail only short-term or readily
real property for no more than three months, provided mitigated environmental disturbance.
such events, assemblies, meetings and leases entail
only short-term or readily mitigated environmental
disturbance.
(15) Designation of environmental study areas and This categorical exclusion is derived from NPS-E7.
research areas, including those closed temporarily or
permanently to the public, provided there is no
environmental impact.
[[Page 39955]]
(16) Land and boundary surveys and minor boundary This categorical exclusion combines NPS-K, NPS-A2, and
adjustments or land acquisitions or exchanges NPS-C2.
resulting in no significant change in land use.
(17) Archaeological surveys and permits involving only This categorical exclusion is derived from NPS-E1.
surface collection or small-scale test excavations.
(18) Promulgation of development guidelines that are in This categorical exclusion was taken from PADC-v. The
accordance with the general objectives of the Plan as term ``development general and square guidelines'' was
covered by the Plan EIS. changed to simply ``development guidelines'' in light
of the non-urban nature of much of the Presidio Trust
Area.
(19) Implementation of a proposal or plan which was This categorical exclusion combines PADC-x, NPS-A1, and
covered by a previously prepared EA and/or EIS or NPS-B1. Although PADC-x was restricted to
categorically excluded, or changes to such a proposal ``development proposal[s] identical to the
or plan when such changes would cause no environmental requirements of the'' PADC's development plan, a
impact. proposal need not be absolutely ``identical'' to a
previously considered proposal in order to be covered
by the EA and/or EIS for a very similar proposal.
(20) Contracts, work authorizations, or procurement This categorical exclusion was taken from PADC-vi. The
actions directly related to and implementing words ``or which were categorically excluded'' have
proposals, programs, and master agreements for which been added to make clear that the criteria here is
an EA and/or an EIS have been prepared, or which were that the proposal, program, or master agreement have
categorically excluded, or which are related to gone through the NEPA process to the extent that it
administrative operation of the Trust. was required.
(21) The leasing, permitting, sale, or financing of, or This categorical exclusion is based on PADC-vii, which
granting of non-fee interests regarding, real or uses the term ``[a]cquisition/disposal by lease,
personal property in the Presidio Trust Area. easement, or sale of real and personal property owned
by the Corporation.* * *'' The term ``permitting'' was
added to recognize this form of legal agreement, which
has been used by the NPS in the past and may continue
to be used by the Trust. The PADC-vii exclusion also
refers to such actions ``implementing a prior decision
of the Board of Directors.'' The Trust anticipates
that all such actions will be implementing prior
decisions of or direction provided by the Board, and
therefore has eliminated this requirement as
superfluous. The Trust is barred from selling fee
interests in real property under its administrative
jurisdiction, and the wording of this categorical
exclusion is in no way intended to add to the Trust's
authority under law.
(22) Extension, reissuance, renewal, renegotiation, This categorical exclusion combines NPS-A3, NPS-A4, NPS-
modification, conversion in form, or termination of A5, and NPS-A6. The term ``conversion in form'' is
agreements for use of real property (including but not intended to cover the situation in NPS-A4 regarding
limited to leases, permits, licenses, concession ``conversion of existing permits to rights-of-way'' as
contracts, use and occupancy agreements, easements, well as other conversions in form (e.g., from a
and rights-of-way) that were in force as of the date concession contract to a lease). The Trust has
the Trust received administrative jurisdiction of the inherited a variety of agreements from the NPS in a
underlying real property, so long as such agreements variety of forms and may wish to standardize these
were previously subject to NEPA, do not involve new through such conversion.
construction or new or substantially greater
environmental impacts, and new information of
substantial importance or changed circumstances
relevant to environmental conditions do not come into
play.
(23) Issuance of permits relating to minor development This categorical exclusion comes from PADC-iv, which
activities (sign approval, interior modifications, was modified (1) to cover ``issuance of permits,''
minor exterior changes to facade, etc.) that are which entails a decision, rather than ``review of
consistent with the Secretary of the Interior's permit applications,'' and (2) to add a requirement of
``Standards for the Treatment of Historic Properties'' consistency with the Secretary's Standards as they may
at 36 CFR Part 68, as applicable. apply to the Presidio, since the Presidio is a
National Historic Landmark. The restriction to the
PADC ``Development Area'' was also removed as it was
relevant only to the PADC.
(24) Rehabilitation, modification, or improvement of This categorical exclusion is intended to cover work on
historic properties in conformance with the Secretary structures and other properties that will not have the
of the Interior's ``Standards for the Treatment of potential for significant environmental effect. Work
Historic Properties'' at 36 CFR Part 68. undertaken in conformance with similar standards at 36
CFR 67.7 is considered not to harm historic structures
under regulations of the Advisory Council on Historic
Preservation at 36 CFR 800.9(c)(2).
(25) Rehabilitation, modification, or improvement of
non-historic properties when the following conditions
are met:.
(i) In the case of residential buildings, the unit
density is not changed more than 20 percent
(ii) The project does not involve changes in land
use (from non-residential to residential or from
residential to non-residential); and
(iii) The estimated cost of rehabilitation is less This categorical exclusion is taken from HUD-2, but has
than 75 percent of the total estimated cost of been restricted to apply only to non-historic
replacement after rehabilitation structures and other properties, since historic
structures and other properties are covered by the
preceding categorical exclusion.
(26) Removal, reduction, or restraint of resident This categorical exclusion is derived from NPS-E3 and
individuals of species that are not threatened or has been modified to cover dangers to residents and
endangered which pose dangers to visitors, residents, neighbors of the Presidio Trust Area and also to cover
or neighbors or immediate threats to resources of the reduction (e.g., trimming of vegetation) and restraint
Presidio Trust Area. (e.g., impoundment of animals).
[[Page 39956]]
(27) Removal of non-historic materials and structures This categorical exclusion comes directly from NPS-E4.
in order to restore natural conditions when such
removal has no potential for adverse environmental
impacts, including impacts to cultural landscapes or
archaeological resources.
(28) Installation, construction, removal, permitting, This categorical exclusion combines NPS-C5, NPS-C8, NPS-
maintenance, replacement-in-kind, relocation, C9, NPS-C10; NPS-C11; NPS-C12, NPS-C17, NPS-C18, NPS-
operation, or modification of signs, displays, kiosks, C19, and NPS-D4, which cover such minor structures.
traffic control devices, pedestrian and traffic safety The restriction in NPS-C17 and NPS-C18 on ``areas
features, trails, trailside camping zones, fencing, showing clear evidence of recent human disturbance''
landscaping, sanitary facilities, comfort stations, has been removed as unnecessary in light of the
utility facilities, parking lots, and other minor centuries of human occupation of the Presidio Trust
structures and facilities. Area and the developed state of much of the Presidio
Trust Area. Likewise, the restriction in NPS-C19 on
construction of fences ``posing no effect on wildlife
migrations'' has also been removed in light of the
lack of existing wildlife migration in the Presidio
Trust Area that would be hindered by fences.
(29) Routine maintenance, property management, resource This categorical exclusion comes primarily from NPS-O.
management, and research or educational activities PADC-iii also covers ``property management,'' and that
with no potential for environmental impact or non- term was added here to reflect the breadth of the
conformance with the Secretary of the Interior's Trust's authorities in the Presidio Trust Area. Also
``Standards for the Treatment of Historic Properties'' added was the reference to the Secretary's Standards,
at 36 CFR Part 68, as applicable. in light of the Presidio's status as a National
Historic Landmark.
(30) Issuance of rights-of-way for and installation, This categorical exclusion combines NPS-C13, NPS-C14,
maintenance, or repair of overhead or underground NPS-C15, and NPS-C16 concerning utilities and utility
utility lines (e.g., power, water, irrigation, rights-of-way. The restriction in NPS-C16 on ``areas
telecommunications, etc.) not involving placement of showing clear evidence of recent human disturbance''
poles or towers outside of existing traffic and has been modified to require conformance with the
utility corridors and not involving vegetation Secretary's Standards, in light of the developed state
clearance (other than for placement of poles), and not of much of the Presidio Trust Area.
resulting in visual intrusion in the Presidio Trust
Area or non-conformance with the Secretary's
``Standards for the Treatment of Historic Properties''
at 36 CFR Part 68, as applicable; and.
(31) Experimental testing of no longer than 180 days of This categorical exclusion is derived from NPS-C7. The
mass transit systems, and changes in operation of limitation in NPS-C7 is for ``testing of short
existing systems with no potential for adverse duration (no more than one season),'' but this
environmental impact. categorical exclusion sets a more precise (and longer)
limit of 180 days, both for the sake of clarity and
for the sake of necessary and appropriate testing
under real-world conditions in an area that interacts
with mass transit systems of neighboring
jurisdictions.
----------------------------------------------------------------------------------------------------------------
The provisions of Sec. 907.10(c) of this title concerning changes
to the list of categorical exclusions have not been included in these
regulations. Nevertheless, the Trust anticipates that this list of
categorical exclusions will be reviewed and refined as additional
categories are identified and as experience is gained in the
categorical exclusion process. Changes to this list--like any changes
to the wording of these proposed regulations--will be made only after
consultation with CEQ and public notice and opportunity for comment.
Section 1010.8 Actions That Normally Require an EIS
This section is adapted from Sec. 907.8 of this title and has
generally been revised for clarity and simplicity. In particular, the
specific criteria in paragraph (b) have been replaced by a reference to
the criteria enumerated in the CEQ regulations at 40 CFR 1508.27.
In paragraph (c), the reference to amendments to the PADC Plan in
the PADC regulations has not been included. Paragraphs (c)(1) and (2)
are derived from Sec. 907.8(b)(3) and (4) of this title, respectively.
Paragraph (c)(2) has been revised to remove any implication that the
Trust might approve, fund, or construct a building that is not in
accordance with the general objectives of the Plan, since such action
would not be authorized by the Trust Act. Paragraph (c)(3) has been
added.
Section 1010.9 Preparation of an EIS
This section is adapted from Sec. 907.9 of this title. The second
sentence of paragraph (a), while not included in the PADC regulations,
is specifically authorized by 40 CFR 1507.3(e), and the Trust believes
it is necessary to include this provision in order to provide for
circumstances in which there may be a lengthy delay between the
decision to prepare an EIS and the actual preparation of the EIS.
In paragraph (b), the Trust believes the sentence referencing the
CEQ regulations is unnecessary and so has omitted it.
Paragraph (c) is likely to be invoked by the Trust in preparing
NEPA documents that tier off of the Plan EIS for proposed actions that
are in accordance with the Plan's general objectives, but whose
environmental effects may not have been adequately analyzed in the Plan
EIS.
Section 1010.10 Actions That Normally Require an EA
This section is adapted from Sec. 907.11 of this title. The most
significant changes were made to the categories of action in paragraph
(c), which are based on Sec. 907.11(b) of this title. The first item in
this list--which is derived from Sec. 907.11(b)(2) of this title--has
been modified slightly to use terms more applicable to the Presidio
Trust Area. As noted in the introductory phrase of Sec. 1010.10(c),
regulations that would be categorically excluded under
Sec. 1010.7(c)(11) are not required to undergo an EA. The second item
has been revised to use a broader term than ``development proposals''--
the term used in Sec. 907.11(b)(3) of this title--for proposals that
may be submitted by project applicants. The third item on the list is
derived from Sec. 907.11(b)(6) and revised to cover more broadly all
significant alterations to public access. The items listed in
Sec. Sec. 907.11(b)(1), (4), (5), (7), and (8) of this title have not
been included, as they are either dealt with more precisely under the
section on categorical exclusions or they are not applicable to the
Presidio Trust Area.
[[Page 39957]]
Section 1010.11 Preparation of an EA
The first three paragraphs of this section are adapted almost
verbatim from Sec. 907.12 of this title. Paragraph (b) has been
shortened by not listing all areas possibly covered by an EA, but
instead noting that only those resources that are relevant need to be
addressed in the EA. Paragraph (d) has been added to allow the use of
``mitigated FONSIs'' in which the original proposal is revised so as to
avoid impacts that would otherwise require the preparation of an EIS.
Section 1010.12 Public Involvement
This section is based on Sec. 907.13 of this title, but has been
expanded to specify specific means by which the Trust will provide for
public involvement.
Section 1010.13 Trust Decision-making Procedures
This section is based on Sec. 907.14 of this title.
Section 1010.14 Review of Proposals by Project Applicants
This section is adapted from Sec. 907.15 of this title. Throughout
these regulations, care has been taken to revise the PADC regulations
to clarify that, consistent with CEQ regulations and this Sec. 1010.14,
in certain circumstances the Trust is not the entity that will be
performing the actual work to prepare the initial EA or EIS. For
example, in Sec. 1010.8(a) (based on Sec. 907.8 of this title), the
phrase ``PADC shall perform or have performed an environmental
assessment'' has been changed to read ``the Trust shall require the
preparation of an EA.'' Similarly, the phrase ``PADC will immediately
begin to prepare or have prepared the environmental impact statement''
has been changed to read ``the Trust will prepare or direct the
preparation of an EIS * * * .''
In forming the Trust, Congress required that the Trust become
financially self-sufficient within fifteen complete fiscal years. Trust
Act section 105(b). If the Trust does not achieve this goal, the
property under its administrative jurisdiction will be transferred to
the General Services Administration for disposal in accordance with the
Defense Authorization Act of 1990. Trust Act section 104(o). As a
result, it is necessary for the Trust to recover from project
applicants, to the greatest appropriate extent, the costs of
environmental review of their proposals.
Under the CEQ Regulations at 40 CFR 1506.5(b), the Trust may
require that a project applicant complete the EA (as opposed to the
EIS) regarding its project on behalf of the Trust, so long as the Trust
makes its own evaluation of the environmental issues and takes
responsibility for the scope and content of the final EA. This
provision has been incorporated herein at paragraph (d).
The CEQ Regulations contemplate that an EIS, in contrast to an EA,
will be completed by the reviewing agency or its contractor, and not by
the project applicant. Such an undertaking can require significant
resources and cost in the tens or hundreds of thousands of dollars.
Given the Trust's statutory obligation to become financially self-
sufficient, the Trust believes it is appropriate in most circumstances
to require the project applicant to cover these substantial costs. For
similar reasons, the Trust likewise believes it is appropriate in most
circumstances to require the project applicant to cover the costs of
any applicable historic preservation review, including review under
section 106 of the National Historic Preservation Act.
The Trust is mindful of the need--as expressed in the CEQ
Regulations--for the EIS to be prepared independently by either the
Trust or a contractor to the Trust with no financial or other interest
in approval of the project. In light of the Trust's mandate to become
self-sufficient, the Trust therefore has the option of recovering the
costs of preparing EIS's either in the form of higher rents or other
charges to the project applicant or its tenants, or in the form of an
upfront charge on the project applicant. The Trust has rejected the
former option, since it places the Trust in the position of not being
able to recover its environmental review costs from an applicant whose
project is ultimately rejected (e.g., for reasons identified in the
environmental review process), and therefore in the position of
potentially being viewed as having an interest in a less searching or
independent environmental review that would encourage the ultimate
approval of the project and recoupment of the Trust's environmental
review costs. This would be contrary to the spirit of NEPA and the
Trust Act.
As a result, the Trust has opted to charge most project applicants
an upfront, non-refundable fee sufficient to cover the anticipated
costs of project review in the EIS stage. Paragraph (e) has been added
in order to specify procedures for the Trust to cover these costs.
Should an amendment or supplement to the EIS be required, the Trust may
require an additional non-refundable fee to cover some or all of the
anticipated costs of this work. In order to provide greater certainty
for project applicants, encourage careful estimation and control of
costs, and avoid any appearance that the Trust is acting at the
direction of a project applicant because the applicant is making
regular payments to the Trust during the review process, the Trust
alone will bear the risk that its estimate of anticipated costs proves
too low as a result of unforeseen circumstances (other than the need to
prepare an amendment or supplement to the EIS). Likewise, in order to
avoid any potential pressure for the Trust to cut corners in its
environmental review, no portion of the fee will be refundable. In this
way, appropriate resources will be devoted to preparation of EIS's,
without threatening the Trust's goal of self-sufficiency and without
jeopardizing the independence of the environmental review process.
Furthermore, section 1010.14(e) also provides that fees paid by
project applicants will also include costs associated with review under
other applicable laws. Key among such other applicable laws is Section
106 of the National Historic Preservation Act. Although section
1010.14(e) is not applicable unless an EIS is to be prepared, the Trust
intends to require applicants to bear the full cost of reviewing
proposals under Section 106 of the National Historic Preservation Act,
while the Trust will remain responsible for the final decision on such
proposals, consistent with regulations of the Advisory Council on
Historic Preservation at 36 CFR 800.1(c)(1)(i).
Because the Trust believes that in many circumstances it will be
appropriate to require project applicants to prepare EA's and to cover
the anticipated costs of preparing EIS's on their projects, the Trust
has considered the potential effects that such requirements might have
on the number of potential applicants for projects in the Presidio
Trust Area. The Trust has concluded that such requirements will be
financially acceptable in the marketplace among project applicants.
First, the Presidio Trust Area is a remarkably desirable location with
features that are unique, both in the Bay Area and elsewhere in the
country. Second, project applicants under the California state
counterpart to NEPA, the California Environmental Quality Act, are
almost uniformly required by relevant state and local agencies in
proximity to the Presidio to prepare the relevant environmental
documentation at their own expense (and at the risk that the project
will not be approved in an economically viable form). Third, the
[[Page 39958]]
Trust anticipates that the economics of most projects that may be
proposed will support an upfront investment for environmental review.
In any event, these proposed regulations would provide the Trust with
the discretion not to apply these requirements with respect to certain
projects or applicants where such a waiver would be appropriate.
Section 1010.15 Actions Where Lead Agency Designation is Necessary
This section is adapted from Sec. 907.16 of this title. As a
practical matter, the Trust anticipates that NPS will be its most
likely partner for consultation purposes, but the regulations allow for
consultation with other agencies (such as the U.S. Fish and Wildlife
Service) where appropriate.
Regulatory Impact
This proposed rulemaking will not have an annual effect of $100
million or more on the economy nor adversely affect productivity,
competition, jobs, prices, the environment, public health or safety, or
State or local governments. This proposed rule will not interfere with
an action taken or planned by another agency or raise new legal or
policy issues. In short, little or no effect on the national economy
will result from adoption of this proposed rule. Because this proposed
rule is not ``economically significant,'' it is not subject to review
by the Office of Management and Budget under Executive Order 12866.
Furthermore, this proposed rule is not a ``major rule'' under the
Congressional review provisions of the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C. 801 et seq.
The Trust has determined and certifies pursuant to the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., that this proposed rule will not
have a significant economic effect on a substantial number of small
entities.
The Trust has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule
will not impose a cost of $100 million or more in any given year on
local, State, or tribal governments or private entities.
Environmental Impact
The Presidio Trust has prepared an Environmental Assessment (EA) in
connection with this proposed rule. The EA determined that this
proposed rule will not have a significant effect on the quality of the
human environment because it is neither intended nor expected to change
the physical status quo of the Presidio in any significant manner.
As a result, the Trust has issued a Finding of No Significant
Impact (FONSI) concerning these final interim regulations and has
therefore not prepared an Environmental Impact Statement concerning
this proposed action. The EA and the FONSI were prepared in accordance
with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq. (NEPA), and regulations of the Council on Environmental Quality
for implementing the procedural provisions of NEPA, 40 CFR parts 1500-
1508.
Both the EA and the FONSI are available for public inspection at
the offices of the Presidio Trust, 34 Graham Street, The Presidio, San
Francisco, CA 94129, between the hours of 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal holidays.
Other Applicable Authorities
The Presidio Trust has drafted and reviewed these proposed
regulations in light of Executive Order 12988 and has determined that
they meet the applicable standards provided in secs. 3(a) and (b) of
that order.
List of Subjects in 36 CFR Part 1010
Administrative practice and procedure, Environmental impact
statements, National parks, Public lands, Recreation and recreation
areas.
Dated: July 16, 1999.
Karen A. Cook,
General Counsel.
Accordingly, the Presidio Trust proposes to add 36 CFR Part 1010,
as set forth below:
CHAPTER X--PRESIDIO TRUST
Part
1010 Environmental quality
PART 1010--ENVIRONMENTAL QUALITY
Sec.
1010.1 Policy.
1010.2 Purpose.
1010.3 Definitions.
1010.4 Responsible Trust official.
1010.5 Major decision points.
1010.6 Determination of requirement for EA or EIS.
1010.7 Actions that do not require an EA or EIS.
1010.8 Actions that normally require an EIS.
1010.9 Preparation of an EIS.
1010.10 Actions that normally require an EA.
1010.11 Preparation of an EA.
1010.12 Public involvement.
1010.13 Trust decision-making procedures.
1010.14 Review of proposals by project applicants.
1010.15 Actions where lead agency designation is necessary.
1010.16 Actions to encourage agency cooperation early in the NEPA
process.
1010.17 Actions to eliminate duplication with State and local
procedures.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. sec. 460bb
note); 42 U.S.C. sec. 4321 et seq.; 40 CFR 1507.3.
Sec. 1010.1 Policy.
The Presidio Trust's policy is to:
(a) Use all practical means, consistent with the Trust's statutory
authority, available resources, and national policy, to protect and
enhance the quality of the human environment;
(b) Ensure that environmental factors and concerns are given
appropriate consideration in decisions and actions by the Trust;
(c) Use systematic and timely approaches which will ensure the
integrated use of the natural and social sciences and environmental
design arts in planning and decision-making which may have an impact on
the human environment;
(d) Develop and utilize ecological, cultural, and other
environmental information in the management of the Presidio Trust Area
pursuant to the Trust Act;
(e) Invite the cooperation and encourage the participation, where
appropriate, of Federal, State, and local authorities and the public in
Trust planning and decision-making processes that affect the quality of
the human environment; and
(f) Minimize any possible adverse effects of Trust decisions and
actions upon the quality of the human environment.
Sec. 1010.2 Purpose.
The regulations in this part are prepared to supplement Council on
Environmental Quality regulations at 40 CFR parts 1500 through 1508 for
implementing the procedural provisions of the National Environmental
Policy Act of 1969, as amended (NEPA), and otherwise to describe how
the Trust intends to consider environmental factors and concerns in the
Trust's decision-making process.
Sec. 1010.3 Definitions.
(a) The following terms have the following meanings as used in this
part:
Decision-maker means the Board or its designee.
EA means an environmental assessment, as defined at 40 CFR 1508.9.
EIS means an environmental impact statement, as defined at 40 CFR
1508.11.
The Plan means the Final General Management Plan Amendment (July
1994) for the Presidio of San Francisco,
[[Page 39959]]
prepared by the National Park Service, U.S. Department of the Interior.
The Plan EIS means the Final Environmental Impact Statement (July
1994) prepared in conjunction with the Plan by the National Park
Service. The term ``previously prepared EIS'' includes the Plan EIS.
Project applicant means an individual, firm, partnership,
corporation, joint venture, or other public or private entity other
than the Trust (including a combination of more than one such entities)
which seeks to demolish, construct, reconstruct, develop, preserve,
rehabilitate, or restore real property within the Presidio Trust Area.
(b) If not defined in this part or in this chapter, other terms
used in this part have the same meanings as those provided in 40 CFR
part 1508.
Sec. 1010.4 Responsible Trust official.
(a) The Executive Director shall designate an employee of the Trust
as the official responsible for implementation and operation of the
Trust's policies and procedures on environmental quality and control.
The delegation of this responsibility shall not abrogate the
responsibility of the Executive Director and the Board to ensure that
NEPA and other applicable laws are followed, or the right of the
Executive Director and the Board to overrule or alter decisions of the
responsible Trust official in accordance with the Trust's regulations
and procedures.
(b) This responsible Trust official shall:
(1) Coordinate the formulation and revision of Trust policies and
procedures on matters pertaining to environmental protection and
enhancement;
(2) Establish and maintain working relationships with relevant
government agencies concerned with environmental matters;
(3) Develop procedures within the Trust's planning and decision-
making processes to ensure that environmental factors are properly
considered in all proposals and decisions in accordance with this part;
(4) Develop, monitor, and review the Trust's implementation of
standards, procedures, and working relationships for protection and
enhancement of environmental quality and compliance with applicable
laws and regulations;
(5) Monitor processes to ensure that the Trust's procedures
regarding consideration of environmental quality are achieving their
intended purposes;
(6) Advise the Board, officers, and employees of the Trust of
technical and management requirements of environmental analysis, of
appropriate expertise available, and, in consultation with the Trust's
General Counsel, of relevant legal developments;
(7) Monitor the consideration and documentation of the
environmental aspects of the Trust's planning and decision-making
processes by appropriate officers and employees of the Trust;
(8) Ensure that all EA's and EIS's are prepared in accordance with
the appropriate regulations adopted by the Council on Environmental
Quality and the Trust;
(9) Consolidate and transmit to appropriate parties the Trust's
comments on EIS's and other environmental reports prepared by other
agencies;
(10) Acquire information and prepare appropriate reports on
environmental matters required of the Trust;
(11) Coordinate Trust efforts to make available to other parties
information and advice on the Trust's policies for protecting and
enhancing the quality of the environment; and
(12) Designate other Trust employees to execute these duties under
the supervision of the responsible Trust official, where necessary for
administrative convenience and efficiency. As used in this chapter, the
term ``responsible Trust official'' includes any such designee.
Sec. 1010.5 Major decision points.
(a) The possible environmental effects of a proposed action or
project within the Presidio Trust Area must be considered along with
technical, financial, and other factors throughout the decision-making
process. For most Trust projects there are three distinct stages in the
decision-making process:
(1) Conceptual or preliminary study stage;
(2) Detailed planning or final approval stage;
(3) Implementation stage.
(b) Environmental review will be integrated into the decision-
making process of the Trust as follows:
(1) During the conceptual or preliminary study stage, the
responsible Trust official shall determine whether the proposed action
or project is one which is categorically excluded under Sec. 1010.7 or
requires further NEPA review (i.e., an EA or an EIS).
(2) If the proposed action or project is not categorically
excluded, then prior to the Trust's proceeding beyond the conceptual or
preliminary study stage, the responsible Trust official must determine
whether an EIS is required.
(3) An EIS, if determined necessary, must be completed and
circulated at the earliest point at which meaningful analysis can be
developed for the proposed action or project, and in any event prior to
the Trust's final approval of the proposed action or project.
Sec. 1010.6 Determination of requirement for EA or EIS.
In deciding whether to require the preparation of an EA or an EIS,
the responsible Trust official will determine whether the proposal is
one that:
(a) Normally does not require either an EA or an EIS (i.e.,
qualifies for a categorical exclusion under Sec. 1010.7);
(b) Normally requires an EIS; or
(c) Normally requires an EA, but not necessarily an EIS.
Sec. 1010.7 Actions that do not require an EA or EIS.
(a) General rule. Pursuant to 40 CFR 1508.4, neither an EA nor an
EIS is required for actions that do not individually or cumulatively
have a significant effect on the human environment.
(b) Criteria. The criteria which were used to determine those
categories of action that normally do not require either an EA or an
EIS, and which are therefore covered by the categorical exclusions
listed in paragraph (c) of this section, include:
(1) Implementation of the action or proposal is in accordance with
the general objectives of the Plan and with the Trust Act, and the
environmental effects have been adequately analyzed in the Plan EIS, or
in a supplement thereto, or in an EA and/or an EIS; or
(2) No additional analysis or public input is necessary to
determine whether there is a potential for significant impact; or
(3) The action or proposal is related solely to internal
administrative operations of the Trust; or
(4) Preliminary analysis indicates that no potential significant
impact would occur.
(c) Categorical exclusions. The categories of action identified in
this paragraph have been determined by the Trust to have no significant
effect on the human environment and are therefore categorically
excluded. Such actions (whether approved by the Trust or undertaken by
the Trust directly or indirectly) do not require the preparation of an
EA or an EIS:
(1) Personnel actions and investigations and personal services
contracts;
(2) Administrative actions and operations directly related to the
operation of the Trust (e.g., purchase of furnishings, services, and
space acquisition or conversion for the Trust offices or maintenance
facilities);
[[Page 39960]]
(3) Internal organizational changes and facility and office
expansions, reductions, and closings;
(4) Routine financial transactions, including such things as
salaries and expenses, procurement, guarantees, financial assistance,
income transfers, audits, fees, bonds and royalties;
(5) Management, formulation, allocation, transfer and reprogramming
of the Trust's budget;
(6) Routine and continuing government business, including such
things as supervision, administration, operations, maintenance, and
replacement activities having limited context and intensity (limited
size and magnitude or short-term effects);
(7) Preparation, issuance, and submittal of publications and
routine reports;
(8) Activities which are educational, informational, or advisory
(including interpretive programs), or otherwise in consultation with or
providing technical assistance to other agencies, public and private
entities, visitors, individuals, or the general public;
(9) Legislative proposals of an administrative or technical nature,
including such things as changes in authorizations for appropriations
or financing authority, minor boundary changes and land transactions;
or having primarily economic, social, individual or institutional
effects, as well as comments and reports on legislative proposals;
(10) Promulgation of regulations and requirements, or amendments
thereto, provided such actions do not:
(i) increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(ii) introduce non-compatible uses which might compromise the
nature and characteristics of the area or cause physical damage to it;
(iii) conflict with adjacent ownerships or land uses; or
(iv) cause a nuisance to adjacent owners or occupants;
(11) Proposal, adoption, revision, and termination of policies,
directives, regulations, and guidelines of an administrative,
financial, legal, technical, or procedural nature, the environmental
effects of which are too broad, speculative, or conjectural to lend
themselves to meaningful environmental analysis;
(12) Preparation, approval, coordination, and implementation of
plans, including priorities, justifications, and strategies, for non-
manipulative and non-destructive research, monitoring, inventorying,
and information gathering;
(13) Identification, nomination, certification, and determination
of eligibility of properties for listing in the National Register of
Historic Places and the National Historic Landmark and National Natural
Landmark Programs;
(14) Minor or temporary changes in amounts or types of visitor use
for the purpose of ensuring visitor safety or resource protection,
minor changes in programs or regulations pertaining to visitor
activities, and approval of permits for special events or public
assemblies and meetings, as well as leases for use of real property for
no more than three months, provided such events, assemblies, meetings
and leases entail only short-term or readily mitigated environmental
disturbance;
(15) Designation of environmental study areas and research areas,
including those closed temporarily or permanently to the public,
provided there is no environmental impact;
(16) Land and boundary surveys and minor boundary adjustments or
land acquisitions or exchanges resulting in no significant change in
land use;
(17) Archaeological surveys and permits involving only surface
collection or small-scale test excavations;
(18) Promulgation of planning and design guidelines that are in
accordance with the general objectives of the Plan as covered by the
Plan EIS;
(19) Implementation of a proposal or plan which was covered by a
previously prepared EA and/or EIS or categorically excluded, or changes
to such a proposal or plan when such changes would cause no
environmental impact;
(20) Contracts, work authorizations, or procurement actions
directly related to and implementing proposals, programs, and master
agreements for which an EA and/or an EIS have been prepared, or which
were categorically excluded, or which are related to administrative
operation of the Trust;
(21) The leasing, permitting, sale, or financing of, or granting of
non-fee interests regarding, real or personal property in the Presidio
Trust Area;
(22) Extension, reissuance, renewal, renegotiation, modification,
conversion in form, or termination of agreements for use of real
property (including but not limited to leases, permits, licenses,
concession contracts, use and occupancy agreements, easements, and
rights-of-way) that were in force as of the date the Trust received
administrative jurisdiction of the underlying real property, so long as
such agreements were previously subject to NEPA, do not involve new
construction or new or substantially greater environmental impacts, and
new information of substantial importance or changed circumstances
relevant to environmental conditions do not come into play.
(23) Issuance of permits relating to minor development activities
(sign approval, interior modifications, minor exterior changes to
facade, etc.) that are consistent with the Secretary of the Interior's
``Standards for the Treatment of Historic Properties'' at 36 CFR part
68, as applicable;
(24) Rehabilitation, modification, or improvement of historic
properties in conformance with the Secretary of the Interior's
``Standards for the Treatment of Historic Properties'' at 36 CFR part
68;
(25) Rehabilitation, modification, or improvement of non-historic
properties when the following conditions are met:
(i) In the case of residential buildings, the unit density is not
changed more than 20 percent;
(ii) The project does not involve changes in land use (from non-
residential to residential or from residential to non-residential); and
(iii) The estimated cost of rehabilitation is less than 75 percent
of the total estimated cost of replacement after rehabilitation;
(26) Removal, reduction, or restraint of resident individuals of
species that are not threatened or endangered which pose dangers to
visitors, residents, or neighbors or immediate threats to resources of
the Presidio Trust Area;
(27) Removal of non-historic materials and structures in order to
restore natural conditions when such removal has no potential for
adverse environmental impacts, including impacts to cultural landscapes
or archaeological resources;
(28) Installation, construction, removal, permitting, maintenance,
replacement-in-kind, relocation, operation, or modification of signs,
displays, kiosks, traffic control devices, pedestrian and traffic
safety features, trails, trailside camping zones, fencing, landscaping,
sanitary facilities, comfort stations, utility facilities, parking
lots, and other minor structures and facilities;
(29) Routine maintenance, property management, resource management,
and research or educational activities with no potential for
environmental impact or non-conformance with the Secretary of the
Interior's ``Standards for the Treatment of Historic Properties'' at 36
CFR part 68, as applicable;
(30) Issuance of rights-of-way for and installation, maintenance,
or repair of overhead or underground utility lines (e.g., power, water,
irrigation, telecommunications, etc.) not involving placement of poles
or towers outside of
[[Page 39961]]
existing traffic and utility corridors and not involving vegetation
clearance (other than for placement of poles), and not resulting in
visual intrusion in the Presidio Trust Area or non-conformance with the
Secretary's ``Standards for the Treatment of Historic Properties'' at
36 CFR part 68, as applicable; and
(31) Experimental testing of no longer than 180 days of mass
transit systems, and changes in operation of existing systems with no
potential for adverse environmental impact.
(d) Overriding criteria. An action which falls into one or more of
the categories in paragraph(s) of this section may still require the
preparation of an EIS or an EA if the responsible Trust official
determines it meets the criteria stated in Sec. 1010.8(b) or
Sec. 1010.10(b), respectively, or involves extraordinary circumstances
that may have a significant environmental effect. At its discretion,
the Trust may require the preparation of an EA or an EIS for a proposal
or action that otherwise qualifies for a categorical exclusion.
Sec. 1010.8 Actions that normally require an EIS.
(a) General procedure. So long as a proposed action or project is
not categorically excluded under Sec. 1010.7, the Trust shall require
the preparation of an EA to determine if the proposed action or project
requires an EIS. Nevertheless, if it is readily apparent to the
responsible Trust official that the proposed action or project will
have a significant impact on the environment, an EA is not required,
and the Trust will prepare or direct the preparation of an EIS without
preparing or completing the preparation of an EA. To assist the
responsible Trust official in determining if a proposal or action
normally requires the preparation of an EIS, the following criteria and
categories of action are provided.
(b) Criteria. Criteria used to determine whether proposals or
actions may significantly affect the environment and therefore require
an EIS are described in 40 CFR 1508.27.
(c) Categories of action. The following categories of action
normally require an EIS (unless categorically excluded or previously
analyzed in an EA or EIS):
(1) Legislative proposals made by the Trust to the United States
Congress;
(2) Approval, funding, construction, and/or demolition in
preparation for construction of any new building, if that activity is
not contemplated by the Plan and has a significant effect on the human
environment that has not previously been reviewed in the Plan EIS or
other previously prepared EA or EIS; and
(3) Proposals that would significantly alter the kind and amount of
recreational, historical, or cultural resources of the Presidio Trust
Area or the integrity of the setting.
Sec. 1010.9 Preparation of an EIS.
(a) Notice of intent. When the Trust decides to prepare an EIS, it
shall publish a notice of intent in the Federal Register in accordance
with 40 CFR 1501.7 and 1508.22. Where there is a lengthy period between
the Trust's decision to prepare an EIS and the time of actual
preparation, then at the discretion of the responsible Trust official
the notice of intent shall be published at a reasonable time in advance
of preparation of the EIS.
(b) Preparation. After having determined that an EIS will be
prepared and having published the notice of intent, the Trust will
begin to prepare or to direct the preparation of the EIS. The EIS shall
be formatted in accordance with 40 CFR 1502.10.
(c) Supplemental environmental impact statements. The Trust may
supplement a draft or final EIS at any time. The Trust shall prepare a
supplement to either a draft or final EIS when: (1) Substantial changes
are proposed to an action analyzed in the draft or final EIS that are
relevant to environmental concerns;
(2) There are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its
impacts; or
(3) Actions are proposed which relate to or are similar to other
actions taken or proposed and that together will have a cumulatively
significant impact on the human environment.
Sec. 1010.10 Actions that normally require an EA.
(a) General procedure. If a proposal or action is not one that
normally requires an EIS, and does not qualify for a categorical
exclusion under Sec. 1010.7, the Trust will require, prepare, or direct
the preparation of an EA. An EA should be prepared when the Trust has
insufficient information on which to determine whether a proposal may
have significant impacts. An EA assists the Trust in complying with
NEPA when no EIS is necessary, and it facilitates the preparation of an
EIS, if one is necessary.
(b) Criteria. Criteria used to determine those categories of action
that normally require an EA, but not necessarily an EIS, include:
(1) Potential for minor degradation of environmental quality;
(2) Potential for cumulative impact on environmental quality; and
(3) Potential for impact on protected resources.
(c) Categories of action. The following categories of action
normally require the preparation of an EA (unless categorically
excluded or previously analyzed in an EA or EIS):
(1) Promulgation of regulations and requirements to the extent such
an action is not covered by a categorical exclusion;
(2) Proposals submitted by project applicants to the Trust for its
review, as described in Sec. 1010.14; and
(3) Proposals to significantly add or alter access between the
Presidio Trust Area and surrounding neighborhoods.
Sec. 1010.11 Preparation of an EA.
(a) When to prepare. The Trust will begin the preparation of an EA
(or require it to be begun) as early as possible after it is determined
by the responsible Trust official to be required. The Trust may prepare
or require an EA at any time to assist planning and decision-making.
(b) Content and format. An EA is a concise public document used to
determine whether to prepare an EIS. Only those resources that may
experience significant impacts and that are specifically relevant to
the particular proposal should be addressed in the EA. Those areas
should be addressed in as much detail as is necessary to allow an
analysis of the alternatives and the proposal. The EA shall contain
brief discussions of the following topics:
(1) Purpose and need for the proposed action.
(2) Description of the proposed action.
(3) Alternatives considered, including a No Action alternative.
(4) Environmental effects of the proposed action and the
alternatives, including mitigation measures.
(5) Listing of agencies, organizations, and/or persons consulted.
(c) Finding of no significant impact (``FONSI''). If an EA is
completed and the responsible Trust official determines that an EIS is
not required, then the responsible Trust official shall prepare a
finding of no significant impact. The finding of no significant impact
shall be made available to the public by the Trust as specified in 40
CFR 1506.6.
(d) Mitigated FONSI. If an EA is completed and the responsible
Trust official determines that an EIS is required, then prior to
preparation of an EIS, the proposal may be revised in order to mitigate
the impacts identified in the EA through adherence to legal
requirements, inclusion of mitigation as an integral part of the
proposal, and/or fundamental changes to the proposal. If the revised
proposal does not qualify for
[[Page 39962]]
a categorical exclusion under Sec. 1010.7, a subsequent EA will be
prepared on the revised proposal and will result in a Mitigated Finding
of No Significant Impact, preparation of an EIS, or additional revision
of the proposal and a subsequent EA.
Sec. 1010.12 Public involvement.
The Trust will make public involvement an essential part of its
environmental review process. Public notice of anticipated Trust
actions, opportunities for involvement, and availability of
environmental documents will be facilitated through announcements in
the Trust's monthly newsletter, postings on its web site
(www.presidiotrust.gov), placement of public notices in newspapers,
direct mailings, and other means appropriate for involving the public
in a meaningful way. The Trust will conduct scoping with interested
federal, state and local agencies and Indian tribes, and hold public
workshops to gather early input whenever appropriate. Notice of all
public workshops will be given in a timely manner. Interested persons
may also obtain information concerning any pending EIS or any other
element of the environmental review process of the Trust by contacting
the responsible Trust official at the following address: Presidio
Trust, P.O. Box 29052, San Francisco, California, 94129-0052.
Sec. 1010.13 Trust decision-making procedures.
To ensure that at major decision-making points all relevant
environmental concerns are considered by the decision-maker, the
following procedures are established.
(a) An environmental document (i.e., the EA, finding of no
significant impact, EIS, or notice of intent), in addition to being
prepared at the earliest point in the decision-making process, shall
accompany the relevant proposal or action through the Trust's decision-
making process to ensure adequate consideration of environmental
factors.
(b) The decision-maker shall consider in its decision-making
process only decision alternatives encompassed by the range of
alternatives discussed in the relevant environmental documents. Also,
where an EIS has been prepared, the decision-maker shall consider all
alternatives described in the EIS, and a written record of the
consideration of alternatives during the decision-making process shall
be maintained.
(c) Any environmental document prepared for a proposal or action
shall be made part of the record of any formal rulemaking by the Trust.
Sec. 1010.14 Review of proposals by project applicants.
(a) Each proposal for demolition, construction, reconstruction,
development, preservation, rehabilitation, or restoration of real
property submitted by a project applicant to the Trust for its review,
and which the decision-maker agrees to consider, shall require an EA
unless categorically excluded or covered by a previously prepared EA
and/or EIS.
(b) The decision-maker may not take any approval action on such a
proposal submitted by a project applicant until such time as the
appropriate environmental review documents have been prepared and
submitted to the decision-maker.
(c) At a minimum, and as part of any submission made by a project
applicant to the decision-maker for its approval, such project
applicant shall make available data and materials concerning the
proposal sufficient to permit the Trust to carry out its environmental
review responsibilities. When requested, the project applicant shall
provide additional information that the responsible Trust official
believes is necessary to permit it to satisfy its environmental review
functions.
(d) With respect to each project proposed for consideration for
which the responsible Trust official determines an EA shall be
prepared, the decision-maker may require a project applicant to submit
a draft EA regarding its proposal for the Trust's evaluation and
revision. In accordance with 40 CFR 1506.5(b), the Trust shall make its
own evaluation of the environmental issues and shall take
responsibility for the scope and content of the final EA.
(e) With respect to each project proposed for consideration for
which the responsible Trust official determines an EIS shall be
prepared, the decision-maker may require a project applicant to pay a
non-refundable fee to the Trust sufficient to cover a portion or all of
the Trust's anticipated costs associated with preparation and review of
the EIS, including costs associated with review under other applicable
laws. Such fee shall be paid to the Trust in full prior to commencement
of the preparation of the EIS or any amendment or supplement thereto.
(f) In accordance with 40 CFR 1506.5(c), the EIS shall be prepared
by the Trust and/or by contractors who are selected by the Trust and
who certify that they have no financial or other interest in the
outcome of the project, and the Trust shall independently evaluate the
EIS prior to its approval and take responsibility for ensuring its
adequacy. The EIS shall be prepared in accordance with 40 CFR part
1502.
(g) The responsible Trust official may set time limits for
environmental review appropriate to each proposal, consistent with 40
CFR 1501.8 and 1506.10.
(h) The responsible Trust official shall at the earliest possible
time ensure that the Trust commences its environmental review on a
proposed project and shall provide the project applicant with any
policies or information deemed appropriate in order to permit effective
and timely review by the Trust of a proposal once it is submitted to
the decision-maker for approval.
Sec. 1010.15 Actions where lead agency designation is necessary.
(a) Consistent with 40 CFR 1501.5, where a proposed action by the
Trust involves one or more other Federal agencies, or where actions by
the Trust and one or more Federal agencies are directly related to each
other because of their functional interdependence or geographical
proximity, the Trust will seek designation as lead agency for those
actions that directly relate to implementation of the general
objectives of the Plan and for those actions that relate solely to the
Presidio Trust Area.
(b) For an action that qualifies as one for which the Trust will
seek designation as lead agency, the Trust will promptly consult with
the appropriate Federal agency to establish lead agency and cooperating
agency designations.
(c) For an action as to which the Trust undertakes lead or
cooperating agency status, the Trust is authorized to enter into a
memorandum of understanding or agreement to define the rights and
responsibilities of lead and cooperating agencies.
Sec. 1010.16 Actions to encourage agency cooperation early in the NEPA
process.
(a) Consistent with 40 CFR 1501.6, the Trust may request the NPS to
be a cooperating agency for actions or projects significantly affecting
the quality of the Presidio. In addition, upon request of the Trust,
any other Federal agency that has jurisdiction by law or special
expertise with respect to any environmental issue that should be
addressed in the analysis may be a cooperating agency. The Trust shall
use the environmental analysis and proposals of cooperating agencies
with jurisdiction by law or special expertise to the maximum extent
possible consistent with its responsibility as lead agency.
[[Page 39963]]
Sec. 1010.17 Actions to eliminate duplication with State and local
procedures.
Consistent with 40 CFR 1506.2, the Trust shall cooperate with State
and local agencies to the fullest extent possible to reduce duplication
between NEPA and State and local requirements. Such cooperation shall
to the fullest extent possible include:
(a) Joint planning processes.
(b) Joint environmental research and studies.
(c) Joint public hearings (except where otherwise provided by
statute).
(d) Joint environmental assessments.
[FR Doc. 99-18687 Filed 7-22-99; 8:45 am]
BILLING CODE 4310-4R-U
