[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Rules and Regulations]
[Pages 61292-61323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23474]
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Part IV
Department of the Interior
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Office of the Secretary
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43 CFR Part 46
Implementation of the National Environmental Policy Act (NEPA) of 1969;
Final Rule
Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 46
RIN 1090-AA95
Implementation of the National Environmental Policy Act (NEPA) of
1969
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (Department) is amending its
regulations by adding a new part to codify its procedures for
implementing the National Environmental Policy Act (NEPA), which are
currently located in chapters 1-6 of Part 516 of the Departmental
Manual (DM). This rule contains Departmental policies and procedures
for compliance with NEPA, Executive Order (E.O.) 11514, E.O. 13352 and
the Council on Environmental Quality's (CEQ) regulations (40 CFR Parts
1500-1508). Department officials will use this rule in conjunction with
and supplementary to these authorities. The Department believes that
codifying the procedures in regulations that are consistent with NEPA
and the CEQ regulations will provide greater visibility to that which
was previously contained in the DM and enhance cooperative conservation
by highlighting opportunities for public engagement and input in the
NEPA process.
The Department will continue to maintain Department's information
and explanatory guidance pertaining to NEPA in the DM and Environmental
Statement Memoranda (ESM) to assist bureaus in complying with NEPA.
Bureau-specific NEPA procedures remain in 516 DM Chapters 8-15 and
bureau guidance in explanatory and informational directives.
Maintaining explanatory information in the Department's DM chapters and
ESM, and bureau-specific explanatory and informational directives will
facilitate timely responses to new ideas, new information, procedural
interpretations, training needs, and editorial changes to assist field
offices when implementing the NEPA process.
EFFECTIVE DATE: November 14, 2008.
FOR FURTHER INFORMATION CONTACT: Dr. Vijai N. Rai, Team Leader, Natural
Resources Management, Office of Environmental Policy and Compliance,
1849 C Street, NW., Washington, DC 20240. Telephone: 202-208-6661. E-
mail: [email protected].
SUPPLEMENTARY INFORMATION: As a part of the conversion of the
Department's NEPA procedures from 516 DM to regulations, a number of
key changes have been made. This rule:
Clarifies which actions are subject to NEPA section 102(2)
by locating all relevant CEQ guidance in one place, along with
supplementary Department procedures.
Establishes the Department's documentation requirements
for urgently needed emergency responses. The Responsible Official (RO)
must assess and minimize potential environmental damage to the extent
consistent with protecting life, property, and important natural,
cultural and historic resources and, after the emergency, document that
an emergency existed and describe the responsive actions taken.
Incorporates CEQ guidance that the effects of a past
action relevant to a cumulative impacts analysis of a proposed action
may in some cases be documented by describing the current state of the
resource the RO expects will be affected.
Clarifies that the Department has discretion to determine,
on a case-by-case basis, how to involve the public in the preparation
of EAs.
Highlights that adaptive management strategies may be
incorporated into alternatives, including the proposed action.
Incorporates language from the statute and CEQ guidance
that EAs need only analyze the proposed action and may proceed without
consideration of additional alternatives when there are no unresolved
conflicts concerning alternative uses of available resources.
This rule is organized under subparts A through E, covering the
material currently in 516 DM Chapters 1 through 6. The Department is
replacing these chapters with new 516 DM Chapters 1-3, which will
include explanatory guidance on these regulations. These revised
chapters will be available to the public before the effective date of
this rule and will be found at http://www.doi.gov/oepc. The Department
did not include 516 DM Chapter 7 in this rule because it provides
internal administrative guidance specific to Department review of
environmental documents and project proposals prepared by other Federal
agencies. Chapters 8-15 of 516 DM continue to contain bureau-specific
NEPA implementing procedures. In addition, other guidance pertaining to
the Department's NEPA regulations and the bureaus' NEPA procedures will
be contained in explanatory and informational directives. These
explanatory and information directives will be contained either in the
DM or ESM (for Departmental guidance), bureau NEPA handbooks (for
bureau-specific guidance), or both.
The CEQ was consulted on the proposed and final rule. CEQ issued a
letter stating that CEQ has reviewed this rule and found it to be in
conformity with NEPA and CEQ regulations (per 40 CFR 1507.3 and NEPA
section 102(2)(B)).
Comments on the Proposal
This rule was published as a proposed rule in the Federal Register
(73 FR 126) on January 2, 2008, and there was a 60-day comment period
that closed on March 3, 2008. The Department received 100 comments.
These comments were in the form of letters, e-mails, and faxes. Of the
100 comments received 50 were substantive; the remaining comments were
all variations of a single form letter addressing one or more of three
issues, which have been addressed below. The Department very much
appreciates the response of the public, which has assisted the
Department in improving the clarity of this final rule.
In addition to changes made to the final rule in response to
specific comments received, which are noted below, the Department has
made minor revisions throughout in order to improve the clarity of the
rule. In general, these latter revisions do not change the substance or
meaning of any of the provisions proposed on January 2, 2008, except in
one or two instances as noted. As contemplated in the preamble to the
proposed rule, the Department has added a provision specifying the
circumstances in which an Environmental Assessment (EA) may tier to an
Environmental Impact Statement (EIS) and in which a bureau may reach a
Finding of No Significant Impact (FONSI) or Finding of No New
Significant Impact (FONNSI). Please see paragraph 46.140(c).
General Comments on the Proposed Rule
Comment: Several commenters questioned the rationale for moving the
Department's NEPA procedures from the DM to regulations and requested
further clarification of this rationale.
Response: The Department believes that codifying the procedures in
regulation will provide greater visibility to that which was previously
contained in the DM and highlight opportunities for public engagement
and input in the NEPA process. The Department believes that this
greater accessibility of the regulations, when published in the Code of
Federal Regulations (CFR), will allow
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the public to more easily participate in the NEPA process.
Comment: Some commenters stated that the Department should include
the issue of global climate change in all environmental analysis
documents. They stated that the Department has a legal obligation under
NEPA to analyze the effects of global climate change as shaping the
context within which proposed actions take place, as well as the
impacts of proposed projects on climate change. Another group
recommended that the Department include a mandate that an environmental
analysis of climate change impacts be included in the NEPA analysis
prepared for Resource Management Plans (RMPs). Several groups suggested
that the Department should require planning documents for fossil fuel
developments to consider various energy alternatives, including
conservation and energy efficiency. They also recommended that the
Department analyze greenhouse gas emissions in all decision documents
related to energy development on public lands. Another commenter
suggested that the Department compile information about landscape
changes in response to climate change to use for programmatic NEPA
documents.
Response: Climate change issues can arise in relation to the
consideration of whether there are direct or indirect effects of the
greenhouse gas emissions from a proposed action, the cumulative effect
of greenhouse gas emissions, and the effect of climate change on the
proposed action or alternatives. The extent to which agencies address
the effects of climate change on the aspects of the environment
affected by the proposed action depends on the specific effects of the
proposed action, their nexus with climate change effects on the same
aspects of the environment, and their implications for adaptation to
the effects of climate change. Whether and to what extent greenhouse
gas emissions and/or climate change effects warrant analysis is the
type of determination that Responsible Officials make when determining
the appropriate scope of the NEPA analysis. Extensive discussion
regarding the role of the Department, as well as the Federal government
as a whole, with respect to the effects of greenhouse gas emissions
and/or global climate change is beyond the scope of this rule
concerning environmental analysis generally. Consequently, the final
rule does not contain explicit provisions addressing global climate
change.
Comment: One commenter stated that the Department should include a
provision that agencies must seek input through the NEPA process from
local, regional, State, and tribal health agencies when making
decisions that may impact human health. Several groups recommend
requiring a Health Impact Assessment (which is a tool used by the World
Health Organization) when a project may impact human health.
Response: The Department appreciates this suggestion but does not
believe inclusion of a specific requirement in this regard is
appropriate in this rule. Individual bureaus of the Department have
addressed and will continue to address possible impacts to human health
in certain circumstances, such as with respect to subsistence issues in
Alaska. Whether or not a Health Impact Assessment is the appropriate
means to assess potential impacts on human health with regard to a
particular proposal is the type of determination that Responsible
Officials make for all manner of possible impacts when determining the
appropriate scope of the NEPA analysis.
Responses to Comments on Individual Provisions, Including Analysis of
Changes Made
The following paragraphs contain responses to comments made on
individual provisions of the proposed rule and incorporate discussion
of changes made to the rule as proposed in January 2008.
Subpart A: General Information
Section 46.10 Purpose of this Part. A new paragraph (c) has been
added to clarify that, in accordance with CEQ regulations at 40 CFR
1500.3, trivial violations of these regulations are not intended to
give rise to any independent cause of action.
Section 46.30 Definitions. This section supplements the terms found
in the CEQ regulations and adds several new definitions. The terms
affected are the following: Adaptive management; Bureau; Community-
based training; Controversial; Environmental Statement Memoranda;
Environmentally preferable alternative; No action alternative; Proposed
action; Reasonably foreseeable future actions; and Responsible
Official. A definition of consensus-based management has been placed in
section 46.110. The definitions of no action alternative and proposed
action have been moved to this section for the final rule from proposed
section 46.420, as these terms may apply to both EAs and EISs. Comments
and responses addressing these terms may be found below, in the
discussion of section 46.420.
Comment: Several commenters expressed concern that the definition
of ``community'' may be ``misinterpreted in a variety of ways to mean
local and county governments affected by a proposed action, or
communities of individuals with a common interest in the project who do
not necessarily live in the area directly affected by the project.''
Several groups recommended that the Department include and review the
definition(s) in Environmental Statement Memorandum No. ESM03-7.
Response: Because of the possibility of confusion noted by the
commenter, the Department has included a provision at section 46.110
focusing on ``consensus-based management'' as incorporating the ideas
reflected in the emphasis on community involvement in the NEPA process.
In developing the provision addressing consensus-based management, the
Department relied upon the existing ESM03-7.
Comment: Many commenters expressed concerns with the proposed
definition of ``controversial.'' Some stated that the size or nature of
a proposed action should not render the action controversial under
NEPA. Several individuals are concerned that the proposed definition of
``controversial'' would render all proposed projects on public lands as
being controversial and will protract NEPA analyses. One group
applauded the Department for defining ``controversial'' in terms of
disputes over the bio-physical effects of a project rather than merely
opposition to a project.
Response: The language in the proposed rule reflects current case
precedent on the meaning of ``controversial'' under NEPA and has been
retained, but with modification to address the confusion regarding the
reference to ``size'' and ``nature'' in the final rule. Courts have
consistently specified that disagreement must be with respect to the
character of the effects on the quality of the human environment in
order to be considered to be ``controversial'' within the meaning of
NEPA, rather than a mere matter of the unpopularity of a proposal. See
Como-Falcon Coalition, Inc. v. U.S. Dept. of Labor, 609 F.2d 342 (8th
Cir. 1978), cert. denied, 446 U.S. 936 (``Mere opposition to federal
project does not make project controversial so as to require
environmental impact statement.'')
Comment: Some commenters suggested that the definition of
``environmentally preferable alternatives'' does not make clear whether
the requirement applies to Records of Decision (RODs) on projects
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analyzed in an EIS or EA or only to those analyzed in an EIS. They
recommended adding a sentence at the end of the definition clarifying
that the requirement applies to EAs and EISs.
Response: CEQ regulations require the identification of at least
one environmentally preferable alternative in a ROD, which is the
decision document issued after completion of an EIS. (40 CFR 1505.2(b);
see also Question 6b of CEQ's ``Forty Most Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations,'' 46 Fed. Reg.
18026 (Mar. 23, 1981), as amended (hereinafter CEQ's ``Forty Most Asked
Questions''). The CEQ regulations do not identify the decision document
issued after completion of an EA/FONSI, and bureaus do not issue RODs
in this situation. Therefore, the Department has not changed the
definition in response to this comment.
Comment: Several commenters expressed reservations about the
definition of Preliminary Environmental Impact Statement (PEIS). They
suggested that the role of the PEIS be clarified. One commenter wanted
the Department to include provisions on how the scoping process and the
PEIS will interact. Others wanted to know what level of detail should
be included in a PEIS and whether use of a PEIS would introduce an
additional requirement for public comment. One commenter strongly
disagreed with the use of a PEIS, stating that the use of a PEIS could
delay a DEIS or FEIS and could add additional expenses to private
proponents that are funding NEPA projects. They recommended that the
Department add a provision to the rule that would enforce time
restrictions on the PEIS process.
Response: Because of the confusion and concern surrounding the
PEIS, and upon further reflection, the Department has decided not to
include this provision in the final rule. The definition in the
proposed rule found at section 46.30 and description in sections 46.415
and 46.420 have been removed in the final rule. The Department
continues to encourage collaboration with the public in an approach to
alternative development and decision-making. The implementation of any
such approach is determined by the RO. The PEIS was simply an optional
tool and its removal from the final rule will not diminish this
continuing Departmental emphasis on collaboration. The RO will still be
free to involve and inform the public regarding each particular NEPA
analysis in a manner that best meets the public and government needs.
Comment: One commenter stated that the Department should add
``agency'' to the definition of ``Reasonably Foreseeable Future
Actions'' to ensure the agency covers all reasonably foreseeable
actions that flow from proposed actions. Several commenters stated that
the proposed definition of ``Reasonably Foreseeable Future Actions''
conflicts with the definition of ``Reasonably Foreseeable Development
Scenario'' contained in the Instruction Memorandum 2004-089 issued by
the BLM. Another commenter stated that the proposed definition of
``Reasonably Foreseeable Future Actions'' does not follow CEQ
guidelines.
Response: The final rule defines ``reasonably foreseeable future
actions'' to explain a term used in CEQ's definition for ``cumulative
impact'' at 40 CFR 1508.7. The Department has attempted to strike a
balance by eliminating speculation about activities that are not yet
planned, but including those that are reasonably foreseeable and are
expected to occur (for example, based on other development in the area
when there has been some decision, funding, or development of a
proposal (see 40 CFR 1508.23)). The Department does not believe that
the definition of ``reasonably foreseeable future actions'' conflicts
with the description of the Bureau of Land Management's analytical
tool, the ``reasonably foreseeable development scenario'' or RFD. The
RFD is a projection (scenario) of oil and gas exploration, development,
production, and reclamation activity that may occur in a specific
resource area during a specific period of time; as such, the analysis
in the RFD can provide basic information about oil and gas activities
that may inform the analysis of reasonably foreseeable future actions.
In order to clarify that reasonably foreseeable future actions
include both ``federal and non-federal'' activities, we have added
these terms in the definition in section 46.30. This is consistent with
40 CFR 1508.7. The Department has added language to clarify that the
existing decisions, funding, or proposals are those that have been
brought to the attention of the RO.
In its mention of the ``Responsible Official of ordinary prudence''
the definition also incorporates the reasonableness standard emphasized
by the Supreme Court as ``inherent in NEPA and its implementing
regulations.'' In Department of Transportation v. Public Citizen, 541
U.S. 752, 770 (2004), the Court reaffirmed that this ``rule of reason''
is what ensures that agencies include in the analyses that they prepare
information useful in the decision-making process. In that case, the
Court noted that the agency in question, the Federal Motor Carrier
Safety Administration in the Department of Transportation, properly
considered the incremental effects of its own safety rules in the
context of the effects of the reasonably foreseeable possibility that
the President might lift the moratorium on cross-border operations of
Mexican motor carriers. Id. In those circumstances, the possibility
that the President might act in one of several ways was neither an
existing decision, matter of funding, or proposal, but was nevertheless
a possibility that a person of ordinary prudence would consider when
reaching a decision regarding the proposed action of promulgating the
rule at issue in that case. Similarly, in some circumstances an RO of
ordinary prudence would include analysis of actions that, while not yet
proposed, funded, or the subject of a decision, nevertheless are likely
or foreseeable enough to provide important information and context
within which any significant incremental effects of the proposed action
would be revealed.
Subpart B: Protection and Enhancement of Environmental Quality
The proposed rule did not include portions of 516 DM Chapter 1 that
are merely explanatory in that they address internal Departmental
processes. This information will be retained in the DM or will be
issued as additional explanatory information by the Department's Office
of Environmental Policy and Compliance in Environmental Statement
Memoranda.
In this final rule, this subpart includes the following sections:
Section 46.100 Federal action subject to the procedural
requirements of NEPA. This section provides clarification on when a
proposed action is subject to the procedural requirements of NEPA.
Paragraph 46.100(b)(4), ``The proposed action is not exempt from the
requirements of section 102(2) of NEPA,'' refers to those situations
where, either a statute specifically provides that compliance with
section 102(2) of NEPA is not required, or where, for instance, a
bureau is required by law to take a specific action such that NEPA is
not triggered. For example, Public Law 105-167 mandates the Bureau of
Land Management (BLM) to exchange certain mineral interests. In this
situation, section 102(2) of NEPA would not apply because the law
removes BLM's decision making discretion. Also, this provision refers
to situations where there is a clear and unavoidable conflict
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between NEPA compliance and another statutory authority such that NEPA
compliance is not required. For example, if the timing requirements of
a more recent statutory authority makes NEPA compliance impossible,
NEPA must give way to the more recent statute.
Similarly, the final rule clarifies that the proposed action is
subject to the procedural requirements of NEPA and the CEQ regulations
depending on ``the extent to which bureaus exercise control and
responsibility over the proposed action and whether Federal funding or
approval will be provided to implement it'' paragraph 46.100(a). The
criteria for making this determination include, inter alia, ``when the
bureau has a goal and is actively preparing to make a decision on one
or more alternative means of accomplishing that goal'' paragraph
46.100(b)(1), and ``the effects can be meaningfully evaluated'' and
``the proposed action would cause effects on the human environment''
paragraph 46.100(b)(3).
The clarifications provided in this section have been made, in
part, in order to ensure that the rule is consistent with the Supreme
Court's decision in Department of Transportation v. Public Citizen, 541
U.S. 752, 770 (2004). In Public Citizen, the Court explained that a
``but for'' causal relationship is insufficient to make an agency
responsible for a particular effect under NEPA and the relevant
regulations, but that there must be ``a reasonably close causal
relationship'' between the environmental effect and the alleged cause
and that this requirement was analogous to the ``familiar doctrine of
proximate cause from tort law.'' 541 U.S. at 767. The Court reaffirmed
that ``courts must look to the underlying policies or legislative
intent in order to draw a manageable line between those causal changes
that may make an actor responsible for an effect and those that do
not'' and that inherent in NEPA and its implementing regulations is a
``rule of reason.'' Id.
Comment: Some commenters expressed concern regarding the procedural
requirements of NEPA. One group stated that the Department's procedural
actions should be subject to NEPA requirements regardless of whether or
not sufficient funds are available. This group stated that if a
proposed action is even being considered by a RO, the procedural
requirements of NEPA must apply. Another group suggested the Department
add an additional subsection that offers guidance whether an ``action''
is subject to NEPA compliance.
Response: The Department agrees that the procedural requirements of
NEPA apply when a proposal consistent with 40 CFR 1508.23 has been
developed. Mere consideration of a possible project however does not
constitute a proposed action that can be analyzed under NEPA. Rather,
under 40 CFR 1508.23, a proposal is ripe for analysis when an agency is
``actively preparing to make a decision.''
When the proposed action involves funding, Federal control over the
expenditure of the funds by the recipient is essential to determining
what constitutes a ``Federal'' action that requires NEPA compliance.
This is consistent with 40 CFR 1508.18(a). The issue of funding does
not turn on the sufficiency, or lack thereof, of the funding, but on
the degree of Federal control or influence over the use of the funds.
The language in the final rule regarding whether a proposal is subject
to NEPA compliance has been clarified by addressing the question of
whether NEPA applies in paragraph 46.100(a), and when the NEPA analysis
should be conducted in paragraph 46.100(b).
Comment: One individual urged the Department to not add additional
obligations that are not currently required under NEPA, particularly
with respect to the emphasis on public participation.
Response: This final rule adds no additional obligations not
currently required under NEPA and the CEQ regulations. Section 46.100
is an effort to consolidate existing requirements in 40 CFR 1508.18, 40
CFR 1508.23, and 40 CFR 1508.25, among others. For instance in 40 CFR
1500.2(d) CEQ requires that Federal agencies ``* * * encourage and
facilitate public involvement in decisions which affect the quality of
the human environment.'' Consistent with this provision, paragraph
46.305(a) requires that a bureau must, to the extent practicable,
provide for public notification and public involvement when an
environmental assessment is being prepared. However, the methods for
providing public notification and opportunities for public involvement
are at the discretion of the RO. Individual bureaus will be able to
provide in their explanatory and informational directives descriptions
of ways of carrying out public notification and involvement appropriate
to different kinds of proposed actions.
Comment: One commenter stated that the proposed rule as written
suggests that a NEPA review would only occur to the extent the effects
on the human environment could be meaningfully evaluated and that the
proposed provision at 46.100 seemed to ``conflict with situations where
there are `unknowns' and the bureau cannot meaningfully evaluate the
effects, but it nonetheless is necessary to move ahead with the
proposal.'' This commenter suggested that the Department clarify that
NEPA review will proceed and will be based on the best available data.
Response: The Department agrees that NEPA analysis takes place when
the effects of a proposed action can be meaningfully evaluated, as
stated in the revised paragraph 46.100(b). Further, the Department
appreciates the commenter highlighting the possibility of confusion
resulting from the structure of 46.100 as proposed. As proposed,
section 46.100 addressed both the questions of whether and when a
proposed action is subject to the procedural requirements of NEPA, but
without grouping the provisions addressing these two issues separately.
In response to this comment, and upon further review, the Department
has restructured section 46.100 to separate these two issues into
paragraphs (a) and (b) for the sake of clarity. The revised paragraph
46.100(b) identifies when in its development the proposed Federal
action the NEPA process should be applied and, if meaningful evaluation
of effects cannot occur, then the proposal is not yet ripe for analysis
under NEPA.
That being said, NEPA itself does not require the use of ``best
available data;'' rather, CEQ regulations demand information of ``high
quality'' and professional integrity. 40 CFR 1500.1, 1502.24. However,
the Department's obligations under other authorities, such as the
Information Quality Act Section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554),
do require bureaus to use the best available data. While discussion of
the Department's obligations under the Information Quality Act is
outside the scope of this rule, the Department concurs that meaningful
evaluation must be carried out on the basis of whatever data is
available. The Department does not believe that this is inconsistent
with CEQ's provision regarding those situations where information is
incomplete or unavailable (40 CFR 1502.22). In fact, rather than
stating that meaningful evaluation cannot take place when there are
``unknowns'' as the commenter appears to suggest, the CEQ regulations
provide steps to take in order that meaningful evaluation can continue
when information is lacking; therefore, the Department does not believe
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revision of this rule is necessary to address this point.
Comment: Several individuals responded to our request for input
regarding the use of FONSIs based on tiered EAs where a FONSI would be,
in effect, a finding of no significant impacts other than those already
disclosed and analyzed in the EIS to which the EA is tiered. These
individuals supported the concept.
Response: The Department appreciates the comment. The Department
has added the provision as contemplated. See section 46.140, which
provides for the use of tiered documents. See also the detailed
response to comments on section 46.140, below. Under this final rule a
FONSI or FONNSI (Finding of No New Significant Impact) can be prepared
based on an EA that is tiered to an EIS. This approach is consistent
with CEQ regulations at 40 CFR 1508.28.
Comment: One group recommended the Department clarify that the
National Park Service (NPS) should prepare an EA or EIS as part of its
submission to the National Capital Planning Commission.
Response: This comment was specifically referring to situations
where a particular type of proposed action may be subject to
categorical exclusion (CX or CE) under the Department's NEPA procedures
but not under the NEPA procedures of another Federal agency such as, in
this case, the NEPA procedures of the National Capital Planning
Commission (NCPC). While, as a general rule, each Federal agency is
responsible for compliance with NEPA consistent with both CEQ's
regulations and its own procedures for implementing NEPA, the
particular issue raised concerns a very specific situation involving
two Federal agencies acting under very specific and distinct
authorities. Therefore, the Department declines to address this comment
more specifically and does not believe a specific provision is
necessary in general Departmental procedures.
Section 46.105 Using a contractor to prepare environmental
documents. This section explains how bureaus may use a contractor to
prepare any environmental document in accordance with the standards of
40 CFR 1506.5(c).
Comment: Some commenters wanted the Department to clarify
requirements for working with a contractor. Some stated that strict
requirements should be put into place for selection of a contractor to
ensure the adequacy of documents, independent evaluation, and sound
management practices. One individual stated that the Department should
adopt existing CEQ guidance on the use and selection of contractors.
Response: The Department complies with CEQ regulations and follows
existing CEQ guidance on the selection and use of contractors. Each
bureau is responsible for determining how its officials will work with
contractors, subject to the CEQ regulations and guidance. In any event,
the RO is responsible for, or is the approving official for, the
adequacy of the environmental document. The Department does not believe
any further clarification of the rule is necessary.
Comment: Another commenter applauded the Department for a ``clear
articulation of the use of contractors for NEPA document preparation.''
Response: The Department appreciates the comment.
Section 46.110 Incorporating consensus-based management. This
section provides a definition of consensus-based management and
incorporates this approach as part of the Department's NEPA processes.
Paragraph 46.110(e), requiring bureaus to develop directive to
implement section 46.110 has been removed from the final rule as not
appropriate for regulatory treatment.
Comment: Most commenters supported the Department's proposed rule
on consensus-based management. However, many individuals expressed
concerns regarding the breadth of the definition of consensus-based
management. Because of the lack of concrete provisions within this
section, many individuals suggested the NEPA process could become
``unnecessarily time consuming and costly.'' Several individuals stated
that the word ``consensus'' should be taken out of the proposed rule
because ``consensus'' suggests interested parties will determine the
preferred alternative. Other individuals suggested that the term
``consensus'' has the potential to create ``unreasonable expectations
in the public.'' One group suggested replacing ``consensus'' with
``open and transparent community involvement and input.'' Another
suggestion for the replacement of the word ``consensus'' was
``collaboration.'' Several individuals stated that the proposal for
consensus-based management should be withdrawn and that the Department
should continue following the current CEQ regulations on collaboration.
Individuals suggested that the Department clearly define what
constitutes community.
Response: The Department has revised section 46.110, and added a
definition for ``consensus-based management'' to this section. The
definition comes from the existing ESM03-7, and expresses existing
Department policy. The definition of ``consensus-based management'' has
been modified in order to render it in regulatory language. Many of the
commenters seem to assume that in the absence of consensus the
Department will not take action. This is not the case. While the RO is
required to consider the consensus-based management alternative
whenever practicable, at all times discretion remains with the RO
regarding decisions, if any, to be made with respect to the proposed
action. While the Department requires the use of consensus-based
management, whenever practicable, we have added a provision that if the
RO determines that the consensus-based alternative should not be the
preferred alternative, an explanation of the rationale behind this
decision is to be incorporated in the environmental document.
Comment: Some commenters stated that the technique of consensus-
based management may be impossible to implement. One group was
particularly concerned with the definition of ``interested party.''
They believe it may be impossible for the Department to determine who
the interested parties are and that the process of managing interested
parties may be cumbersome and add expense and time onto NEPA projects.
This group suggested that the Department develop a clear and concise
definition of ``interested parties.''
Response: The Department acknowledges that consensus may not always
be achievable or consistent with the Department's legal obligations or
policy decisions. However, the Department requires the use of
consensus-based management whenever practicable. CEQ regulations direct
agencies to encourage and facilitate public involvement in the NEPA
process. 40 CFR 1500.2(d), 40 CFR 1506.6. The Department agrees that
use of the term ``interested parties'' may cause confusion. The
Department has replaced the term ``interested parties'' with ``those
persons or organizations who may be interested or affected'' which is
used in the CEQ regulations. See for example 40 CFR 1503.1.
Comment: Several individuals stated that it is vital that the
interests of the ``regional community'' be taken into account during
the NEPA process. One commenter applauded the Department for including
consensus-based management in the proposed rule and for taking
additional steps to support the ``cooperative conservation policy.''
One group believed this proposal would ``provide an avenue for impacted
local governments and citizens to become
[[Page 61297]]
involved in the agency review process, and have their interests
acknowledged in a meaningful way, and achieve a win-win final
decision.''
Response: The Department appreciates the comment and agrees that
the interests of the regional and local community should be taken into
account during the NEPA process.
Comment: Several commenters stated that the Department needs to add
a provision to the rule that clearly spells out the role of the RO.
This provision would include directives on selecting alternatives.
Response: The Department has defined ``Responsible Official'' under
section 46.30. The Department has also specified in the definition that
the RO is responsible for NEPA compliance (which includes the selection
of alternatives). The particular identity of the RO for any given
proposed action is determined by the relevant statute, regulation, DM,
or specific delegation document that grants the authority for that
particular action.
Comment: Some individuals also stated that a process should be
included to assure the public that the community's work is reflected in
the evaluation of the proposed action and the final decision, even if
the community alternative is not eventually selected as the agency's
preferred alternative. One group suggested that the Department define
what constitutes ``assurance'' that participant work is considered in
the decision-making process. Several groups stated that the community
alternative must fully comply with NEPA, CEQ regulations, and all
Department policies and procedures in order to be considered by the RO.
Several groups refer to court cases stating that NEPA ``does not
require agencies to consider alternatives that are not feasible or
practical.'' Individuals would like the Department to explain what a
community alternative consists of, how it will be evaluated, who is the
relevant community, and how many community alternatives can be proposed
for each project. They also expressed concern that the proposed rule
suggests all alternatives submitted must be analyzed in detail.
Response: Section 46.110 provides for the evaluation of reasonable
alternatives presented by persons, organizations or communities who may
be interested or affected by a proposed action in the NEPA document
even if the RO does not select that alternative for implementation. The
final rule clarifies that, while all or a reasonable number of examples
covering the full spectrum of reasonable alternatives may be
considered, a consensus-based management alternative (if there are any
presented) may only be selected if it is fully consistent with the
purpose of and need for the proposed action, as well as with NEPA
generally, the CEQ regulations, and all applicable statutory and
regulatory provisions, as well as Departmental and bureau written
policies and guidance could be selected. It also provides that bureaus
must be able to show that participants' or community's input is
reflected in the evaluation of the proposed action and the final
decision. Therefore, the Department believes that the final rule
adequately addresses these comments.
Comment: Some individuals indicated that NEPA does not require
consensus and stated the proposed rule goes against the direction of
the CEQ regulations. Some commenters directed the Department to review
CEQ's ``Collaboration in NEPA'' handbook. Several groups recommended
that the Department include and review the Environmental Statement
Memorandum No. ESM03-7.
Response: The Department agrees neither NEPA nor the CEQ
regulations require consensus. This new regulation requires the use of
consensus-based management whenever practicable. Consensus-based
management is not inconsistent with the intent of NEPA and the CEQ
regulations. The Department has reviewed CEQ's publication
``Collaboration in NEPA--A Handbook for NEPA Practitioners'' available
at http://ceq.eh.doe.gov/nepa/nepapubs/Collaboration_in_NEPA_Oct2007.pdf. While consensus-based management, like collaboration, can
be a useful tool, the Department recognizes that consensus-based
management may not be appropriate in every case. The final rule does
not set consensus-based management requirements, including timelines or
documentation of when parties become involved in the process. Similar
to collaborative processes, consensus-based management processes, like
public involvement and scoping, will vary depending on the
circumstances surrounding a particular proposed action. Some situations
will require a lot of time and others will not. Regardless of the level
or kind of public involvement that takes place, at all times the RO
remains the decision maker.
Comment: One group suggested that the Department remove paragraph
(b) because it is ``duplicative, ambiguous, and unnecessary.'' They
believed this section simply restates the requirement in section
1502.14 of the CEQ regulations that requires agencies evaluate ``all
reasonable alternatives.'' They also expressed concern that community-
based alternatives may be given preferential weight over the project
proponent's alternative.
Response: The Department does not agree that the section is
unnecessary and duplicative or that it simply restates the requirement
in section 1502.14 of the CEQ regulations. Although there are some
common elements to 40 CFR 1502.14 and paragraph 46.110(b), this
paragraph requires the use of consensus-based management in NEPA
processes and decision-making whenever practicable. The RO is
responsible for an analysis of the reasonable alternatives, and the
NEPA process allows for the selection of an alternative based on the
consideration of environmental effects, as well as the discretionary
evaluation of the RO. The intent of this provision is that alternatives
presented by those persons or organizations that may be interested or
affected, including applicants, be given consideration.
Comment: One group wanted to see a mandate added to the proposed
rule that requires the Department to work with tribal governments. One
individual suggested that the word ``considered'' should be changed to
``adopted,'' ``accepted,'' or ``implemented'' to ensure consideration
is given to an alternative proposed by a tribe.
Response: The Department has a government-to-government
relationship with federally-recognized tribes and as such specifically
provides for consultation, coordination and cooperation. We consider
all alternatives, including those proposed by the tribes, as part of
the NEPA process, but cannot adopt, accept, or implement any
alternative before full evaluation of all reasonable alternatives.
Therefore, the Department declines to adopt the group's recommendation.
Section 46.113 Scope of the analysis. This section, as proposed,
addressed the relationships between connected, cumulative, and similar
actions and direct, indirect and cumulative impacts. This section has
been removed from the final rule.
Comment: Some commenters stated that the proposed rule is not clear
with respect to the issue of what projects need to be included in the
scope of analysis. One individual suggested that the Department should
include language in the proposed rule clarifying that the effects of
connected, cumulative and similar actions must be included in the
effects analysis as indirect or cumulative effects. These actions do
not become part of the proposed action, and alternatives for these
actions need not be considered in the analysis.
[[Page 61298]]
One individual suggests that the Department change the language to
provide guidance that allows bureaus to determine which projects need
to be included in a cumulative effects analysis. They recommend clearly
defining ``connected,'' ``cumulative,'' ``direct,'' and ``indirect.''
If these changes are made, some believe this rule will provide
uniformity, consistency, and predictability to the NEPA process.
Another individual suggested ``should'' be removed from this
section. They expressed concern that the current wording implies that
connected and cumulative action analysis is optional.
One commenter recommended that this section should be deleted in
its entirety because it is inconsistent with CEQ regulations. They
recommended that the Department revise the section to reflect the
difference between the treatment of connected, cumulative, and similar
actions and the treatment of the effects of such actions.
Response: In light of the confusion reflected in several of the
comments, as well as upon further consideration, the Department has
eliminated this provision from the final rule. Bureaus will continue to
follow CEQ regulations regarding scope of analysis at 40 CFR 1508.25,
as well as bureau specific directives.
Section 46.115 Consideration of past actions in the analysis of
cumulative effects. This section incorporates CEQ guidance issued on
June 24, 2005 that clarifies how past actions should be considered in a
cumulative effects analysis. The Department has elected not to repeat
the specific provisions of the CEQ guidance in the final rule.
Responsible Officials are directed to refer to the applicable CEQ
regulations and the June 24, 2005 CEQ guidance.
Comment: Several groups commended the Department for its efforts to
bring clarity to the NEPA cumulative effects analysis.
Response: The Department appreciates the comments.
Comment: Several groups stated that CEQ regulations do not contain
a ``significant cause-and-effect'' filter excluding projects from
cumulative impact analysis because the project's effects are minor. One
group was concerned that the proposed rule contains measures that would
``constrain the usefulness of agencies' analyses of cumulative
impacts,'' and would violate CEQ regulations. This group suggested that
the proposed rule would constrain the scope of actions whose effects
should be considered in a cumulative impacts analysis.
Some individuals stated that the Department is proposing to curtail
the consideration and evaluation of past actions when proposing future
activities. They stated that the agencies and public should be informed
of potential environmental consequences before decisions are made.
Others suggested this section does not provide guidance to the RO on
what past actions and proposed future actions should be included in the
analysis. Groups stated that a Department field office has no inherent
expertise in determining which actions are relevant to a cumulative
impacts analysis and should therefore not be vested with such
discretion. Several groups suggested that the entire section should be
removed from the proposed rule, and that the Department should conduct
environmental analyses pursuant to CEQ regulations. One individual
stated ``NEPA is intended to ensure that bureaus make sound decisions
informed by the ``cumulative and incremental environmental impacts'' of
the proposed projects and how those impacts will actually affect the
environment.'' Several groups stated that vague language for past
actions to be included in cumulative impact analysis will result in
more confusion and litigation.
Response: At section 46.115, this final rule incorporates guidance
on the analysis of past actions from the June 24, 2005 CEQ Guidance on
the Consideration of Past Actions in Cumulative Effects Analysis, which
may be found at http://ceq.eh.doe.gov/nepa/regs/Guidance_on_CE.pdf.
This section is consistent with existing CEQ regulations, which use the
terms ``effects'' and ``impacts'' synonymously and define cumulative
impact as ``the incremental impact of an action when added to other
past, present, and reasonably foreseeable future actions'' (40 CFR
1508.7).
The focus of the CEQ guidance incorporated in this final rule is on
the consideration of useful and relevant information related to past
actions when determining the cumulative effects of proposals and
alternatives. Bureaus will conduct cumulative effects analyses
necessary to inform decision-making and disclose environmental effects
in compliance with NEPA. A ``significant cause-and-effect'' filter is
specifically provided for in the CEQ guidance.
To clarify the Department's commitment to follow CEQ guidance
concerning consideration of past actions, the final rule at section
46.115 is revised to state, ``When considering the effects of past
actions as part of a cumulative effects analysis, the Responsible
Official must analyze the effects in accordance with 40 CFR 1508.7 and
in accordance with relevant guidance issued by the Council on
Environmental Quality, such as `The Council on Environmental Quality
Guidance Memorandum on Consideration of Past Actions in Cumulative
Effects Analysis' dated June 24, 2005, or any superseding Council on
Environmental Quality guidance.'' The Department believes that by
incorporating CEQ's guidance we have included sufficient specificity in
the rule; any other ``how to'' information may be provided through the
Departmental chapters in the DM, environmental statement memoranda
series, or bureau-specific explanatory and informational directives.
Comment: Groups expressed concern over the definition of
``reasonably foreseeable future actions'' and suggested this definition
should be removed from the final proposal. They understood that the
Department cannot conduct a ``crystal ball'' analysis but that actions
should be considered in the analysis even if decisions and funding for
specific future proposals does not exist.
Response: The Department agrees. In response, the Department has
added specificity and provided guidance on what should be considered a
reasonably foreseeable future action in order to ensure that
speculative activities or actions are not incorporated into the
analysis while actions that may inform the RO's analysis of cumulative
impacts for the proposed action are included, even if they are not yet
funded, proposed, or the subject of a decision identified by the
bureau. This approach is consistent with CEQ regulations.
Section 46.120 Using existing environmental analyses prepared
pursuant to NEPA and the Council on Environmental Quality regulations.
This section explains how to incorporate existing environmental
analysis previously prepared pursuant to NEPA and the CEQ regulations
into the analysis being prepared.
Comment: Several individuals agreed that using existing
documentation will reduce lengthy analysis and duplication of work and
applaud the Department for including this section in the proposed rule.
However, commenters would like a provision added to the section to
ensure the supporting documentation is provided to the public online
and in the bureau's office.
Response: The Department agrees that any information relied upon in
a NEPA analysis should be publicly available, either independently or
in connection with the specific proposed action at
[[Page 61299]]
issue, and has so stated in section 46.135.
Section 46.125 Incomplete or unavailable information. CEQ
regulations at 40 CFR 1502.22 provide ``When an agency is evaluating
reasonably foreseeable significant adverse effects on the human
environment in an environmental impact statement and there is
incomplete or unavailable information, the agency shall always make
clear that such information is lacking'' and sets out steps that
agencies must follow in these circumstances. This section clarifies
that the overall costs of obtaining information referred to in 40 CFR
1502.22 are not limited to the estimated monetary cost of obtaining
information unavailable at the time of the EIS, but can include other
costs such as social costs that are more difficult to monetize.
Specifically, the Department requested comments on whether to provide
guidance on how to incorporate non-monetized social costs into its
determination of whether the costs of incomplete or unavailable
information are exorbitant. The Department also requested comments on
what non-monetized social costs might be appropriate to include in this
determination; e.g., social-economic and environmental (including
biological) costs of delay in fire risk assessments for high risk fire-
prone areas.
Comment: Many commenters expressed concern with the incomplete or
unavailable information section. They stated that the rule does not
provide guidance to bureaus on how to address ``non-monetized social
costs.'' Some individuals stated that critical information is missing
from this section, such as an exclusive list of non-monetized social
costs. Several groups suggested the Department expand on CEQ regulation
section 1502.22 which addresses agency procedure in the face of
incomplete or unavailable information. Groups stated that the
Department should ``direct its bureaus to specifically evaluate the
risks of proceeding without relevant information, including risks to
sensitive resources.'' Some suggested the Department provide their
findings to the public so the public can provide meaningful comment and
scrutiny. They stated that this approach would be more consistent with
case law and with CEQ regulations. Groups stated that if the section
remains ``as is,'' the Department has provided ``the bureaus with an
incentive to cease collecting information and providing it to the
public.'' One group stated that the proposed rule encourages agencies
to find reasons not to obtain information that they have already
acknowledged is relevant to reasonably foreseeable significant impacts
and that this message is contrary to NEPA and CEQ regulations. Several
other commenters noted that the proposed rule provides clarity in
assessing the monetary costs of gathering information and is consistent
with CEQ regulations.
Response: The Department believes that section 46.125 provides
guidance sufficient to implement 40 CFR 1502.22 in so far as CEQ's
regulation addresses this issue of costs. The Department has added some
language in response to comments regarding what sorts of considerations
constitute ``non-monetized social costs.'' However, the Department
believes that other factors that may need to be weighed include the
risk of undesirable outcomes in circumstances where information is
insufficient or incomplete. Paragraph 1502.22(b) specifically provides
for the steps the Department will take if the overall cost of obtaining
the data is exorbitant or the means to obtain the data are not known.
Comment: One commenter suggested that the Department must
``utiliz[e] public comment and the best available scientific
information'' and recommended including a provision to this effect in
the final rule.
Response: There is no question that public involvement is an
integral part of the NEPA process and can take a variety of forms,
depending on the nature of the proposed action and the environmental
document being prepared; therefore the final rule includes several
provisions addressing public involvement. There is, however, some level
of confusion regarding the data standard applicable to the type of
information NEPA requires. The assertion is frequently made in court
cases, as the commenter suggests here, that NEPA analyses must use the
``best available science'' to support their conclusions. In fact, the
``best available science'' standard comes from section 7 of the
Endangered Species Act, specifically 16 U.S.C. 1536(a)(2), which
requires that ``each agency shall use the best scientific and
commercial data available'' when evaluating a proposed action's impact
on an endangered species. In addition, the ``best available science''
standard is used by the United States Department of Agriculture Forest
Service's regulations implementing the National Forest Management Act
of 1976, 16 U.S.C. 1600 et seq. (see Final Rule and Record of Decision,
National Forest System Land Management Planning Part III, 73 Fed. Reg.
21468 (Apr. 21, 2008) (to be codified at 36 CFR Part 219)). NEPA
imposes a different standard: rather than insisting on the best
scientific information available, CEQ regulations demand information of
``high quality'' and professional integrity. 40 CFR 1500.1, 1502.24.
Therefore, the Department declines to accept the commenter's
recommendation.
Section 46.130 Mitigation measures in analyses. This section has
been clarified from the proposed rule. The revision clarifies how
mitigation measures and environmental best management practices are to
be incorporated into and analyzed as part of the proposed action and
its alternatives.
Comment: Most individuals stated that the Department should address
mitigation measures in the proposed rule. These individuals explained
that, in order to provide interested parties an accurate portrayal of
potential effects, it is necessary to include all mitigation measures
in the impacts analysis. Several individuals indicate the language in
the proposed rule is broad and unclear. Several groups opposed the
proposed rule in its current form and suggested that the Department
should revise and narrow the rule to ``clarify that possible mitigation
measures are discussed in NEPA documents in order to help inform an
agency's decision, but reflect the well-settled legal principle that
the agency need not guarantee that particular mitigation measures be
implemented or that such mitigation measures be successful.'' One group
suggested that the Department revise the proposed rule to clarify that
NEPA does not require agencies to adopt particular mitigation measures
or to guarantee the success of the mitigation plans. One group stated
that avoiding significant environmental effects should be the primary
goal in the development of any proposed action and mitigation should be
a final course of action when all other attempts to avoid impacts have
been exhausted.
Response: The Department agrees with the comments about the
importance of mitigation; the provision addressing mitigation is
carried forward into this final rule. The Department has, however,
refined the language of the provision for clarity. The Department
agrees that NEPA does not require bureaus to adopt particular
mitigation measures and that it is not possible to guarantee the
success of mitigation plans, but does not believe revision to the final
rule reflecting this understanding is necessary.
Comment: One group argued that including mitigation measures in the
effects analysis is crucial to demonstrate that potential effects can
be mitigated through the use of stipulations,
[[Page 61300]]
conditions of approval, and best management practices. They did not
believe it necessary to ``strip'' mitigation measures or best
management practices from an applicant's proposal just for the sake of
analyzing the stripped down version.
Response: It was not the Department's intent that applicants'
proposals be stripped of all best management practices or mitigation
measures. The Department has included language to clarify this point.
Independent of NEPA, any application must provide a proposal that
includes any ameliorative design elements (for example, stipulations,
conditions, or best management practices) required to make that
proposal conform to legal requirements. In addition, the applicant's
proposal presented to the bureau for decision-making will include any
voluntary ameliorative design element(s) that are part of the
applicant's proposal. Therefore, the analysis of the applicant's
proposal, as an alternative, includes, and does not strip out, these
elements. Should the bureau wish to consider and/or require any
additional mitigation measures other than the design elements included
in the applicant's proposal, the effects of such mitigation measures
must also be analyzed. This analysis can be structured as a matter of
consideration of alternatives to approving the applicant's proposal or
as separate mitigation measures to be imposed on any alternative
selected for implementation.
Section 46.135 Incorporation of referenced documents into NEPA
analysis. This section establishes procedures for incorporating
referenced documents as provided for in the CEQ regulations at 40 CFR
1502.21.
No comments were received on this section, but clarifying changes
have been made in this final rule.
Section 46.140 Using tiered documents. This section clarifies the
use of tiering. As contemplated in the preamble to the rule, and in
response to favorable comments, the Department has added a new
subsection clarifying that an environmental assessment may be prepared,
and a finding of no significant impact reached, for a proposed action
with significant effects, whether direct, indirect, or cumulative, if
the environmental assessment is tiered to a broader environmental
impact statement which fully analyzed those significant effects.
Tiering to the programmatic or broader-scope environmental impact
statement would allow the preparation of an environmental assessment
and a finding of no significant impact for the individual proposed
action, so long as any previously unanalyzed effects are not
significant. The finding of no significant impact, in such
circumstances, would be, in effect, a finding of no significant impact
other than those already disclosed and analyzed in the environmental
impact statement to which the environmental assessment is tiered. The
finding of no significant impact in these circumstances may also be
called a ``finding of no new significant impact.'' In addition, the
provision requiring bureaus to review existing directives addressing
tiering, and listing topics that must be included in such directives
has been removed from the final rule as not appropriate for regulatory
treatment. The numbering of the subsections has been adjusted
accordingly.
Comment: One group supported using existing analyses to avoid
duplication of effort and to minimize costs. However, they stated that
the Department should clearly indicate that existing data does not need
to be supplemented with new data if there is no evidence that the
current conditions differ from the conditions in which the existing
data was developed.
Response: The Department concurs with the comment, but believes
that it has been addressed in paragraph 46.140(a). As contemplated in
the preamble to the rule, and in response to favorable comments, the
Department has added a new paragraph 46.140(c).
Section 46.145 Using adaptive management. This section incorporates
adaptive management as part of the NEPA planning process.
Comment: Most commenters supported the concept of adaptive
management. However, they stated that the Department has not clearly
explained how adaptive management will be incorporated into the NEPA
process. One individual believed adaptive management could be a useful
tool in allowing ``mid-course corrections'' without requiring new or
supplemental NEPA review. Several groups suggest that the Department
clarify that adaptive management is only appropriate where risk of
failure will not cause harm to sensitive resources. Also, they stated
that a requirement for a sufficient inventory of current conditions of
affected resources should be included in the adaptive management plan.
A detailed monitoring plan should be developed with specific indicators
that will serve to define the limits of acceptable change. They also
requested a ``fallback'' plan, which would be implemented if adaptive
management, monitoring, or funding is not available. Several commenters
suggested the Department include sufficient detail and commitments as
to how impacts will be measured, avoided, and mitigated. They urged the
Department to make this plan available for public comment. Another
group suggested that the Department clearly delineate the scope,
duration, and availability of funding for any planned monitoring
programs before they are implemented. One individual suggested that the
Department include additional detail that will clarify how and when it
is appropriate to evaluate the effects of adaptive management in
subsequent NEPA analysis. Another commenter suggests the Department
develop a manual to demonstrate to managers circumstances where
adaptive management has worked on-the-ground.
Many groups were concerned that adaptive management is a costly
practice and will result in accruing additional costs for project
proponents. One group was concerned that lack of information may be
used to excuse and allow actions to proceed without sufficient
protective measures in place. Some commenters expressed concern that it
would be impossible to adequately analyze impacts of adaptive
management ``since those actions rely on future conditions that could
be complicated and cumulative.'' Modifications to requirements and
conclusions in decision documents must be allowed to ensure appropriate
adjustments to management actions, according to one group. One
commenter was concerned that the Department may misuse adaptive
management with regard to on-the-ground monitoring due to lack of
funding. Another group suggested the project proponent should play a
role in defining the adaptive management strategy and ensuring funding
will be available. They also suggested the Department clarify that
public involvement is welcome but adaptive management strategies and
implementation are the full responsibility of the agency.
Groups questioned adaptive management's consistency with current
case law, NEPA, and CEQ regulations. Several commenters suggested that
this section should be eliminated due to its inconsistencies with NEPA
and CEQ. Due to lack of CEQ framework and no guidance for
implementation, one group suggested that the Department should remove
this section from the proposed rule.
Response: The Department has made minor wording changes to this
section. Adaptive Management (AM) is an approach to management;
however, it can be integrated with the NEPA process. The establishment
of specific provisions with respect to the use of AM
[[Page 61301]]
is beyond the scope of this rule. The intent of this provision is only
to clarify that the use of an AM approach is not inconsistent with
NEPA. That is, proposed actions must be analyzed under NEPA. Each
proposed action, including possible changes in management resulting
from an AM approach, may be analyzed at the outset of the process, or
these changes in management may be analyzed when actually implemented.
Section 46.150 Emergency responses. This section clarifies that
ROs, in response to the immediate effects of emergencies, can take
immediate actions necessary to mitigate harm to life, property, or
important resources without complying with the procedural requirements
of NEPA, the CEQ regulations, or this rule. Furthermore, ROs can take
urgent actions to respond to the immediate effects of an emergency when
there is not sufficient time to comply with the procedural requirements
of NEPA, the CEQ regulations, or this rule by consulting with the
Department (and CEQ in cases where the response action is expected to
have significant environmental impacts) about alternative arrangements.
Comment: Some commenters expressed concern regarding the broad
definitions provided in the emergency response section. They stated the
section is ``written too broadly and could potentially lead to the
misuse of the provision that would allow a bureau to bypass the
preparation of an environmental document.'' One group objected to the
lack of specificity in terms provided in this section, such as
``emergency,'' ``emergency actions,'' ``immediate impact,'' and
``important resources,'' leaves uncertainty as to how this provision
may be implemented by the Department.
Response: There is no special meaning intended for the term
``emergency'' beyond its common usage as ``an unforeseen combination of
circumstances or the resulting state that calls for immediate action''
(Webster's Third New International Dictionary Of The English Language
1961 and Merriam-Webster's Collegiate Dictionary (11th ed. 2004)); ``a
sudden, urgent, usually unexpected occurrence or occasion requiring
immediate action'' (Random House Dictionary Of The English Language
(2ed. 1987)); ``a state of things unexpectedly arising, and urgently
demanding immediate action'' (The Oxford English Dictionary 2ed. 1991)
and ``[a] situation that demands unusual or immediate action and that
may allow people to circumvent usual procedures * * *'' (Black's Law
Dictionary 260, 562 (8th ed. 2004)). The proposed regulation, as
revised in this final rule, recognizes that responsible officials can
take immediate actions to control the immediate impacts of an emergency
to mitigate harm to life, property, or important natural or cultural
resources.
The final rule, at section 46.150, replaces ``other important
resources'' with ``important natural, cultural, or historic resources''
to more clearly identify the type of resources impacted by the
emergency. The Department has not defined an emergency because it is
impossible to list all circumstances that constitute an emergency; it
is up to the RO to decide what constitutes an emergency.
Only such actions required to address the ``immediate impacts of
the emergency that are urgently required to mitigate harm to life,
property, or important natural, cultural, or historic resources'' may
be taken without regard to the procedural requirements of NEPA or the
CEQ regulations. Thus, there are no NEPA documentation requirements for
these types of situations and the final rule requires NEPA to apply to
any and all subsequent proposed actions that address the underlying
emergency (paragraphs 46.150 (c) and (d)). The provisions of section
46.150 codify the existing Department practice and CEQ guidance for
emergency actions.
Comment: Another group suggested that the Department add a sentence
that states ``the RO shall document in writing the action taken, any
mitigation, and how the action meets the requirements of this
paragraph.'' Several commenters stated that this section does not
comply with Congress' mandate to comply with NEPA and CEQ regulations.
Several groups believed the proposed rule would allow a bureau to
implement any action at any time and avoid the NEPA planning process.
Others stated that the ``important resources'' clause should be removed
from this section. Several commenters were concerned that the
Department is implementing emergency response in order to preclude
analysis of fire suppression activities.
Response: The Department agrees that the RO should document the
determination of an emergency and have modified the final rule to
require this. The Department will continue to act to protect lives,
property, and important natural, cultural, or historic resources
through means including the use of fire suppression. The Department
notes that fire suppression alternatives are addressed in plans that
are subject to NEPA analysis.
Section 46.155 Consultation, coordination, and cooperation with
other agencies. This section describes the use of procedures to
consult, coordinate, and cooperate with relevant State, local, and
tribal governments, other bureaus, and Federal agencies concerning the
environmental effects of Department plans, programs, and activities.
The Department deleted the reference to organizations since this
section will deal only with Federal, State, and tribal governmental
entities. Material related to consensus-based management has been moved
to section 46.110 in order to consolidate all provisions related to
consensus-based management. Paragraph 46.155(b), directing bureaus to
develop procedures to implement this section, has been deleted as not
appropriate for regulatory treatment.
Comment: Many commenters supported this section and stated
collaboration would benefit all interested parties.
Response: The Department appreciates the comments.
Comment: Some individuals pointed out that consensus is often
unachievable and unnecessary. One group stated that the Department
should put federal project reviews into a consensus building process to
ensure that opinions and experience are captured in the NEPA process.
Response: Please see our response above to comments on section
46.110.
Comment: Many groups suggested the Department require bureaus to
work with cooperating agencies, such as the U.S. Fish and Wildlife
Service. One commenter indicated that the Department should ensure that
enhanced involvement does not add unnecessary cost or burden to project
proponents. They also stated that ``memorializing cooperative
conservation in regulations, rather than policy guidance, will result
in unnecessary burdens and litigation.''
Response: The Department requires that the RO of the lead bureau
consider any request by an eligible government entity to participate in
a particular EIS as a cooperating agency. The Department recognizes
that an emphasis on the use of cooperating agencies may result in
additional steps in the NEPA process, but is likely to lead to improved
cooperative conservation and enhanced decision making. Executive Order
13352 on Facilitation of Cooperative Conservation requires all federal
agencies to implement cooperative conservation in their programs and
activities. Cooperative conservation is consistent with the CEQ
requirement that agencies should
[[Page 61302]]
encourage and facilitate public involvement in the NEPA process. See 40
CFR 1500.2(d), 1506.6.
Comment: Several tribes expressed concern that the proposed rule
will negate the government-to-government consultation with tribes. The
tribes believed that the Department should include a provision to
ensure Indian tribes are given the opportunity to fully participate in
the NEPA process and address concerns that are unique to each action.
Response: See our response above with respect to government-to-
government consultation under section 46.110.
Section 46.160 Limitations on actions during the NEPA analysis
process. This section incorporates guidance to aid in fulfilling the
requirements of 40 CFR 1506.1.
Comment: Several individuals agreed with the proposed rule and
believe there is legal authority to support this section. One
individual suggested that the Department should address actions that
can be taken while a ``project'' is underway, specifically ``actions
taken by a private project applicant that are outside the jurisdiction
of the bureau are not an irreversible or irretrievable commitment of
agency resources.'' They suggested the Department add a provision to
this section to clarify the Department's commitment to projects.
Although the direction is clear in the provision, one group stated
bureau field offices are not adhering to this policy and that an
additional provision should be added to this section regarding the use
of existing NEPA documents for major federal actions. Another group
wanted the Department to add an additional sentence clarifying that a
particular action must be justified independently of the program and
will not prejudice the ultimate decision of the proposed program.
Response: The Department appreciates the support expressed for this
provision. The Department believes that this provision is clear and
consistent with 40 CFR 1506.1 and does not believe any additional
statement to this effect need be added to the final rule. The requested
addition is not required because the provision here at section 46.160
only addresses situations where the major Federal action is within the
scope of and analyzed in an existing NEPA document supporting the
current plan or program. With respect to current practice within the
Department, as explained in the preamble to the proposed rule, see 73
FR 126 (Jan. 2, 2008), the Department believes that one of the benefits
of establishing this final rule is greater transparency in the NEPA
process. Such transparency is likely to improve consistency of
implementation across the Department, as well.
Section 46.165 Ensuring public involvement. This section has been
removed from the final rule. CEQ regulations include requirements for
public involvement in the preparation of an EIS. Section 46.305 of this
final rule addresses public involvement in the EA process. The
requirement in paragraph 46.305(a), that the bureau must, to the extent
practicable, provide for public notification and public involvement
when an EA is being prepared, includes an element of timeliness. The RO
has the discretion to choose method(s) of public notification and
public involvement that ensure that, if practicable, the public
receives timely information on the proposed action.
Comment: One commenter stated that this provision does not provide
clarity in the role of public participation. They suggested the
Department add additional language to explain the timing, processes and
opportunities this provision will provide.
Response: CEQ regulations implementing NEPA direct agencies to
encourage and facilitate public involvement in the NEPA process ``to
the fullest extent possible.'' 40 CFR 1500.2(d); see also 40 CFR
1506.6. Bureaus conduct a wide variety of actions under various
conditions and circumstances. Therefore, the Department has determined
that the best approach is for individual bureaus to provide direction
as to how ROs should exercise their discretion in ensuring that this
involvement takes place in a manner practicable in the particular
circumstances of each proposed action, but that it is not appropriate
to provide specifics as to how this should occur in this final rule.
The Department has provided some information regarding public
involvement in ESM 03-4 and may address this topic in future ESMs.
Section 46.170 Environmental effects abroad of major Federal
actions. This section describes procedures the bureaus must follow in
implementing EO 12114, which ``represents the United States
government's exclusive and complete determination of the procedural and
other actions to be taken by Federal agencies to further the purpose of
the National Environmental Policy Act, with respect to the environment
outside the United States, its territories and possessions.''
No comments were received on this provision.
Subpart C: Initiating the NEPA Process
In the conversion from 516 DM 2 to 43 CFR Part 46, Subpart C, we
have restructured the Department's requirements for initiating the NEPA
process. We have put into regulations the essential parts of the NEPA
process that are unique to the Department and which require further
clarification of the CEQ regulations. This rule clarifies the
requirements for applying NEPA early, using categorical exclusions
(CEs), designating lead agencies, determining eligible cooperating
agencies, implementing the Department's scoping process, and adhering
to time limits for the NEPA process.
Section 46.200 Applying NEPA early. This section emphasizes early
consultation and coordination with Federal, State, local, and tribal
entities and with those persons or organizations who may be interested
or affected whenever practical and feasible. A new paragraph 46.200(e)
has been added to clarify that bureaus must inform applicants as soon
as practicable of any responsibility they will bear for funding
environmental analyses associated with their proposals. Any cost
estimates provided to applicants are not binding upon the bureau. This
provision had already been included with respect to the preparation of
EISs, but should also have been included with respect to EAs.
Therefore, the provision has been moved from 46.400 (EISs) to 46.200.
Comment: Some commenters supported this section of the proposed
rule as it is currently written.
Response: The Department appreciates the comments.
Comment: Some commenters stated that the proposed rule is not clear
with respect to how community-based training will be conducted and what
the content of the training will include. These commenters suggested
the proposed rule should provide a detailed discussion of the purpose
of such training, as well as when it is warranted.
Response: The Department has determined that this topic is most
appropriately addressed in the environmental statement memoranda.
Community-based training, including the content of the training, is
included in ESM03-7 and, if appropriate, will be expanded in future
ESMs or bureau-specific explanatory and informational directives. No
change to the proposed rule has been made.
Comment: Some commenters also recommended that the proposed rule
should clarify that it does not expand the amount of information
required for applications under the relevant substantive statute.
[[Page 61303]]
Response: The final rule does not expand the amount of information
required beyond what is required by NEPA and CEQ regulations, which may
be more than the information required for applications under the
relevant substantive statute. This provision simply provides that the
bureaus be forthcoming with descriptions of information that the
applicant may need.
Comment: A few commenters stated that public involvement should be
limited to submitting comments on the scoping notice, attending public
meetings, and submitting comments on the final version of draft NEPA
documents. Various commenters suggest that the proposed rule require
early consultation with applicants. Others proposed additional changes
to the proposed rule to further facilitate early coordination between
the Department and applicants. These commenters recommended that the
proposed rule distinguish between public involvement in the EA process
and the EIS process.
Response: As noted above, CEQ regulations implementing NEPA direct
agencies to encourage and facilitate public involvement in the NEPA
process ``to the fullest extent possible.'' 40 CFR 1500.2(d); see also
40 CFR 1506.6. The Department is encouraging enhanced public
involvement and broad-based environmental coordination early in the
NEPA process. The purpose is to facilitate better outcomes by
encouraging dialogue among the affected parties. Public involvement is
encouraged during the EA and EIS process. CEQ regulations prescribe the
manner in which the minimum level of public involvement must be carried
out under the EIS process; the manner of conducting public involvement
in the EA process is left to the discretion of RO.
Section 46.205 Actions categorically excluded from further NEPA
review. This section provides Department-specific guidance on the use
of categorical exclusions.
Comment: Many commenters supported this section of the proposed
rule as it is currently written. These commenters supported the
position that NEPA does not ``apply to statutorily created categorical
exclusions,'' such as those created by Congress in 2005.
Response: The Department concurs that legislation governs the
application of statutory categorical exclusions. For example, the
Energy Policy Act of 2005 (EPAct) establishes how NEPA applies with
respect to these categorical exclusions.
Comment: Several groups suggested that the Department ``ensure that
its bureaus involve the public in the development and application of
CEs and clearly state that extraordinary circumstances need to be
provided for unless Congress specifically exempts an agency from doing
so.'' These groups maintained that CE disagreements could be reduced
through greater transparency in their application. Some of these
comments recommended the deletion of paragraph 46.205(d) from the
proposed rule. Overall, commenters generally believed it is important
to articulate the extraordinary circumstance under which a CE will not
apply.
Response: As noted above, CEQ regulations include specific
requirements for the establishment of procedures, including CEs, for
implementing NEPA. When established as part of the DM, the categories
listed in the final rule and the extraordinary circumstances language
were approved by CEQ and subject to public review and comment, in
accordance with 40 CFR 1507.3, by publication in the Federal Register,
March 8, 2004 (69 FR 10866). The final CEs, as originally published in
the DM, and as presented in this final rule, were developed based on a
consideration of those comments. The Department has provided for
extraordinary circumstances in the application of its CEs. Each bureau
has a process whereby proposed actions are evaluated for whether
particular CEs are applicable including whether extraordinary
circumstances exist. As noted above, part of the Department's intent in
publishing its NEPA procedures as regulations is to increase
transparency in their implementation.
By moving its NEPA procedures, including CEs and the listing of
extraordinary circumstances from the DM to regulations, the Department
does not intend to alter the substance of these CEs or extraordinary
circumstances. In paragraph 46.205(d) the Department is merely
acknowledging the fact that Congress may establish CEs by legislation,
in which case the terms of the legislation determine how to apply those
CEs.
Section 46.210 Listing of Departmental Categorical Exclusions. This
section includes a listing of the Department's CEs (currently 516 DM
Chapter 2, Appendix B-1). The CEs are in paragraphs (a) through (l).
These CEs were all published for public comment prior to inclusion in
the DM. This section includes the same number of CEs as were in the DM
and the wording in the CEs is unchanged, with five exceptions. Four of
those changes are made between the rule as proposed and final because
of minor editorial changes from how the categorical exclusions appeared
in the DM.
First, Sec. 46.210(b) has been revised from ``Internal
organizational changes and facility and office reductions and
closings'' as it appeared in the DM to ``Internal organizational
changes and facility and bureau reductions and closings'' to conform to
the definition of ``bureau'' in the final rule, at Sec. 46.30, which
includes ``office.'' The DM had not provided a definition of ``bureau''
and so used both ``bureau'' and ``office.'' Second, the word
``development'' was inadvertently added, so that the parenthetical in
the proposed rule at Sec. 46.210(c) read ``(e.g., in accordance with
applicable procedures and Executive Orders for sustainable development
or green procurement).'' This change has been deleted from this final
rule.
Third, the numbering system has been changed in the CE Sec.
46.210(k) from the DM, originally published as final on June 5, 2003
(68 FR 33814), in order to more clearly set out the requirements for
use of the CE for hazardous fuels reduction activities. The meaning of
the CE has not changed. And fourth, in paragraphs 46.210(k) and (l),
the citations to the ESM series, which appeared in parentheticals in
the DM, but as footnotes in the Notice published on March 8, 2004 (69
FR 10866), have been placed in the text itself for ease of reference.
Finally, paragraph 46.210(i), which replaces 516 DM Chapter 2,
Appendix B-1, Number 1.10, has been changed to correct an error during
the finalization of the revision to these DM chapters in 2004. Prior to
1984, and up until 2004, this CE, as established and employed by the
Department, covered ``Policies, directives, regulations, and guidelines
that are 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 later be subject to the NEPA process, either collectively or
case-by-case.'' 49 FR 21437 (May 21, 1984); 516 DM 2, Appendix 1 (June
30, 2003) (Archived versions of 516 DM chapters, including the 1984,
2003, and 2004 versions of 516 DM 2, may be accessed at http://elips.doi.gov/app_dm/index.cfm?fuseaction=ShowArchive). No problems
with the use of the CE were brought to the attention of the Department
during this period. It is the version of the CE that was in place prior
to 2004 that was proposed in the Department's January 2, 2008 Notice of
Proposed Rulemaking (73 FR 126, 130), and is announced as final in the
rule published today.
[[Page 61304]]
From 2004, however, a slightly different version of the CE appeared
in the DM chapters. In 2000, the Department proposed revisions to 516
DM, including 516 DM 2. 65 FR 52212, 52215 (Aug. 28, 2000). No change
was proposed to this CE at that time, and no comments were received
regarding this CE. No further action was taken on the 2000 proposal
until 2003, when the Department again published the proposed revision
to the 516 DM chapters at issue; however, as proposed this revision
included an erroneous change to this CE. 68 FR 52595 (Sept. 4, 2003).
No comments were received regarding this CE in response to the 2003
Notice. As a result, although no change had been intended, the
following version was published as final in 2004 (69 FR 10866, 10877-78
(Mar. 8, 2004)), and incorporated into 516 DM 2, Appendix 1.10:
``Policies, directives, regulations, and guidelines that are of an
administrative, financial, legal, technical, or procedural nature and
whose environmental effects are too broad, speculative, or conjectural
to lend themselves to meaningful analysis and will later be subject to
the NEPA process, either collectively or case-by-case.''
As noted in the preamble to the proposed rule, published January 2,
2008 (73 FR 126, 130), the Department is correcting an unintended
drafting error in the 2004 Rule. The text which previously described
two categories of policies, directives, regulations and guidelines (``*
* * that are 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 later be subject to the NEPA process * * *''), was replaced
with a more restrictive category of policies, directives, regulations
and guidelines (``* * * that are of an administrative, financial,
legal, technical, or procedural nature and whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process * *
*''). During the Departmental review beginning in 2006, in preparation
for this rulemaking, the Department discovered the drafting error that
infected both the 2003 proposal and the 2004 final revision to the DM.
This error has made it difficult to use the CE as originally intended,
and has engendered confusion in the Department. It is now clear that
the erroneous version that became final in 2004, though inadvertent,
had resulted in a substantive difference in meaning. For example, the
use of the word ``and'' made it difficult to apply the CE to an agency
action, such as a procedural rule, that has no individual or cumulative
significant environmental effects. With the correction effectuated by
this 2008 rulemaking (no comments were received with respect to this
proposed correction), this CE has now been replaced with its original
version. As such, actions such as procedural rules with no individual
or cumulative significant environmental effects are covered by the
categorical exclusion, as well as circumstances where the action will
later be subject to NEPA compliance.
Comment: One commenter stated that the bureau-specific CEs should
be included in the proposed rule. Comments also suggest the addition of
a new category in the proposed rule which allows the bureaus the
discretion to establish other Departmental CEs which are consistent
with 43 CFR 46.205. One group suggests revising the proposed rule to
cross-reference bureau-specific CEs. This group maintained that this
cross-reference will provide better information for the public, as well
as promote greater transparency in the NEPA process.
Response: Bureau specific CEs are listed separately in the 516 DM
Chapters 8-15 to reflect bureau specific mission and activities. Those
DM Chapters remain in effect. Bureaus have specific resource management
and environmental conservation responsibilities and their CEs are
tailored to these unique missions and mandates. The Departmental CEs
are general and are applicable throughout the Department and across all
bureaus. Bureaus have the discretion to propose additional CEs that
apply in a bureau specific context and which are included in the bureau
specific chapters of the DM. If appropriate, bureaus can also propose
to the Department additional CEs to augment those already in this rule
for future consideration. Such additional proposed CEs would have to be
consistent with the broad nature of the already existing Departmental
CEs. Cross referencing is unnecessary because bureau specific CEs are
unique to that particular bureau and do not apply to other bureaus.
Comment: Several groups cited 40 CFR 1508.27(b), and stated that
the Department ``must also perform a cumulative effects analysis prior
to promulgation of the CE.'' These groups stated that impacts analysis
at the project level does not relieve the Department from the
obligation to ensure that the CE has no cumulative impacts. These
groups were concerned that the proposed rule on CEs does not comply
with NEPA requirements and would violate recent court rulings.
Response: The requirements for establishing agency procedures for
implementing NEPA--such as the procedures set forth in this rule, and
including CEs--are set forth in CEQ's regulations at 40 CFR 1505.1 and
1507.3. These provisions require agencies to consult with CEQ while
developing procedures and to publish the procedures in the Federal
Register for public comment prior to adoption. The CEQ regulations do
not direct agencies to prepare a NEPA analysis or document before
establishing agency NEPA procedures. This means that agencies are not
required to prepare a NEPA analysis to establish their NEPA procedures;
however, agencies must have a basis for determining that actions
covered by proposed CEs do not have individual or cumulative impacts.
Agency NEPA procedures assist agencies in fulfilling agency
responsibilities under NEPA and are not, themselves, actions or
programs that may have effects on the human environment. Moreover,
agency NEPA procedures do not dictate what level of NEPA analysis is
required for a particular proposed action or program. Thus, such
procedures are not federal actions subject to the requirements of NEPA.
The determination that establishing agency NEPA procedures does not
itself require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73
(S.D. Ill. 1999), aff'd 230 F.3d 947, 954-55 (7th Cir. 2000).
By including the Department's CEs in this rule, the Department is
merely moving established categories and language addressing
extraordinary circumstances from their current location in the DM to
the new 43 CFR Part 46. When established as part of the DM, these
categories and extraordinary circumstances language were approved by
CEQ and subject to public review and comment, in accordance with 40 CFR
1507.3. The substantiation for those actions included the bases for
determining that the actions covered by the CE do not ``individually or
cumulatively have a significant effect on the human environment.''(40
CFR 1508.4). This final rule does not add any new categories or--apart
from one clarifying addition (explained below)--alter existing language
regarding extraordinary circumstances. Therefore, the Department does
not believe that this final rule fails to comply with NEPA or the CEQ
regulations and believes that the existing procedural
[[Page 61305]]
framework established by the statute, CEQ regulations, and existing
Department procedures is maintained.
In Sierra Club v. Bosworth, 2007 U.S. App. LEXIS 28013 (9th Cir.,
Dec. 5, 2007), the case cited by commenters, the Ninth Circuit
determined, in part, that the U.S. Forest Service's establishment of a
CE constituted establishment of a program for which a cumulative
effects analysis was required. Because this litigation involves a CE
that is analogous to a CE used by the Department, the Department has
determined that the category in question will remain in the final rule,
with the understanding and written direction that it will not be used
by the individual bureaus in areas within the jurisdiction of the Ninth
Circuit. If, at a later date, the Department determines changes must be
made to sections 210 and 215 of part 46, those changes will similarly
undergo CEQ review as well as public review and comment. Further, in
such event, the Department will comply with all applicable requirements
for rulemaking.
Comment: Some groups also suggested that this section of the
proposed rule is ``extremely vague and broad.'' These commenters
recommended removal of, or expanded limits on, the portions of the CE
that authorize mechanical treatment to reduce fuels, as well as those
portions which authorize post-fire rehabilitation. Commenters maintain
that the allowance of these authorizations would be ``environmentally
disastrous.'' Furthermore, these groups recommended implementation of
strict measures to ensure that ``temporary roads'' remain temporary.
Response: As explained above, by including the Department's CEs in
this rule, the Department is merely moving established categories and
language addressing extraordinary circumstances from their current
location in the DM to the new 43 CFR Part 46. When established as part
of the DM, these categories and extraordinary circumstances language
were approved by CEQ and subject to public review and comment, in
accordance with 40 CFR 1507.3 (for example, see 68 Federal Register
33813 published on June 5, 2003). This final rule does not add any new
categories or alter existing language regarding extraordinary
circumstances, with the exceptions noted above with respect to the
language of the CEs, including the correction of the typographical
error in paragraph 46.210(i) and the clarification in section 46.215
noted below.
Comment: Some commenters suggested modification of the proposed
rule in such a way that the collection of small samples for mineral
assessments be included within educational CEs. Other commenters
recommended the proposed rule be modified to incorporate CEs for the
Fish and Wildlife Service. Another commenter recommended that the
Department adopt its own CE relating to the installation, maintenance,
or restoration of artificial water developments used in the
conservation of wildlife. In addition, this commenter suggests clearly
defining small water control structures in the proposed rule.
Response: See responses above.
Section 46.215 Categorical Exclusions: Extraordinary circumstances.
This section contains a listing of the Department's CEs: Extraordinary
Circumstances (currently 516 DM Chapter 2, Appendix B-2). This section
includes the same number of CEs: Extraordinary Circumstances as were in
the DM, and the wording in the CEs: Extraordinary Circumstances is
essentially unchanged. Similar to the listing of CEs, each of the
Extraordinary Circumstances was published for public comment prior to
inclusion in the DM. The CEs: Extraordinary Circumstances are in
paragraphs (a) through (l). In the proposed rule, and in this final
rule, the only change from the way the Extraordinary Circumstances
appeared in the DM is the addition of the following sentence to section
46.215: ``Applicability of extraordinary circumstances to categorical
exclusions is determined by the Responsible Official.'' This is not a
substantive change to the extraordinary circumstances themselves, but
reflects the authority and the responsibility of the RO. Similarly, the
phrase ``as determined by the bureau'' (which appears in the DM) was
inadvertently left out of the proposed rule at paragraph 46.215(g); the
final rule therefore reads: ``Have significant impacts on properties
listed, or eligible for listing, on the National Register of Historic
Places as determined by the bureau.'' While the DM provision (see 69 FR
19866, Mar. 8, 2004) that is being replaced by this rule read ``as
determined by either the bureau or office,'' only ``bureau'' is used
here, to be consistent with the definition of ``bureau'' in the final
rule, at section 46.30.
Comment: Another commenter believed that the Executive Order on
Facilitation of Hunting Heritage and Wildlife Conservation should form
the basis of extraordinary circumstances and should be added to the
proposed rule.
Response: As noted above, no new CEs or extraordinary circumstances
are being added at this time. That being said, the Department is aware
of the referenced Executive Order and will incorporate in Departmental
directives, as appropriate, any plan developed under the Executive
Order for the management of resources under the Department's
jurisdiction.
Comment: Some commenters stated that lands found to have
``wilderness characteristics,'' such as citizen proposed wilderness
areas, do not constitute extraordinary circumstances. Many commenters
suggested that the Department revise this section of the proposed rule
to clarify that the term ``highly controversial environmental effects''
does not include instances where there is merely a public controversy.
Response: The Departmental list of extraordinary circumstances
specifies wilderness areas or wilderness study areas but not wilderness
characteristics or citizen proposed wilderness areas. As noted above,
no new extraordinary circumstances are being added as part of this
initiative. That being said, just as with any other resource value,
there may be circumstances where the issue of effects on areas with
wilderness characteristics may be captured under the existing
extraordinary circumstances.
Comment: One commenter requested, ``where an Interior agency
proposes to categorically exclude a decision from review under NEPA,
that the agency include the proposed decision on NEPA registers
available on the agency's Web site.'' This commenter also requested
eliminating the adoption of regulations and policies from the list of
Departmental CEs, as found in paragraph (i).
Response: The Department declines to adopt the commenter's
recommendation regarding making the proposed decisions supported by CEs
available on bureau Web site(s). From a practical standpoint, many
thousands of proposed actions annually are categorically excluded. To
list each use of a CE on a NEPA register or bureaus' Web sites would
prove overly burdensome. The Department declines to adopt the
commenter's recommendation regarding eliminating the adoption of
regulations and policies from the list of Departmental CEs, as found in
paragraph (i). As explained above, the Department is not changing the
language of the CEs or the extraordinary circumstances in the final
rule, but is merely moving them from the DM to regulations.
Comment: Some groups stated that the proposed rule severely narrows
the definition of extraordinary
[[Page 61306]]
circumstances. These groups also believed the proposed rule allows the
Department to illegally manipulate NEPA's threshold question.
Response: This final rule simply moves established categories and
language on extraordinary circumstances from the Department's NEPA
procedures previously located in 516 DM 2, Appendix 1 and 2; no change
was proposed or is made to the extraordinary circumstances themselves
in the final rule. As noted above, these categories and requirements
were established following public review and comment, in consultation
with CEQ and with CEQ's concurrence, pursuant to 40 CFR 1507.3. The
final rule does not add any new categories, nor does it substantively
alter existing requirements regarding review for extraordinary
circumstances. The Department notes that contrary to the commenter's
assertion that the threshold question with respect to the extraordinary
circumstances review is altered, the prefatory statement to the list of
extraordinary circumstances was, and remains ``Extraordinary
circumstances (see Sec. 46.205(c)) exist for individual actions within
CXs that may meet any of the criteria listed in paragraphs (a) through
(l) of this section.'' (Emphasis added.)
Section 46.220 How to designate lead agencies. This section
provides specific detail regarding the selection of lead agencies.
Comment: Some commenters stated that the proposed rule needs to
address how a lead agency will be designated when more than one federal
agency is involved. These commenters recommended that the Department
consider requiring the consent of an agency before it can be named the
lead agency. In addition, commenters suggested that the Department may
want to recognize in the proposed rule that the RO would need to comply
with any applicable statutory or regulatory requirements in the
designation of the lead agency.
Response: CEQ regulations at 40 CFR 1501.5 establish guidelines on
the designation of a lead agency, including resolution of the question
of designation, in the event of dispute. The RO complies with this rule
in the designation of a lead agency.
Section 46.225 How to select cooperating agencies. This section
establishes procedures for selecting cooperating agencies and
determining the roles of non-Federal agencies, such as tribal
governments, and the further identification of eligible governmental
entities for cooperating agency relationships. Criteria for
identifying, and procedures for defining, the roles of cooperating
agencies and the specific requirements to be carried out by cooperators
in the NEPA process are set forth in this section.
Comment: Several commenters supported consensus-based management
for resolving competing government interests.
Response: The Department appreciates the comments.
Comment: Some commenters suggested that lead NEPA agencies must
collect the ``best available information,'' with the decision-making
process based on this information. These commenters also proposed
modification of the proposed rule to ``encourage'' the use of this
section in preparing an EA.
Response: The Department collects the high quality information, and
that information supports the NEPA analysis which contributes to the
decision-making process. This is consistent with CEQ requirements. The
Department declines to make the recommended change to paragraph
46.225(e); ROs are given the latitude to exercise discretion in this
regard.
Comment: Many commenters supported the use of memoranda of
understanding (MOU) and recommended revision of the proposed rule to
include clarification on cooperating agency status and limitations, as
well as a schedule for the environmental document.
Response: Paragraph 46.225(d) provides for the use of memoranda of
understanding (MOU) between the lead and cooperating agencies. The MOU
provides a framework for cooperating agencies to agree to their
respective roles, responsibilities and limitations, including, as
appropriate, target schedules. The requirement with respect to
memoranda of understanding in paragraph 46.225(e) may apply to EAs
also.
Section 46.230 Role of cooperating agencies in the NEPA process.
This section provides specific detail regarding the responsibilities of
cooperating agencies.
No comments were received for this section.
Section 46.235 NEPA scoping process. This section discusses the use
of NEPA's scoping requirements to engage the public in collaboration
and consultation for the purpose of identifying concerns, potential
impacts, relevant effects of past actions, possible alternatives, and
interdisciplinary considerations. The regulatory language encourages
the use of communication methods (such as using the Internet for the
publications of status of NEPA documents on bulletin boards) for a more
efficient and proactive approach to scoping.
Comment: Some organizations stated that the Department has offered
no explanation for the lack of required scoping when preparing an EA or
applying a CE, as compared with scoping for an EIS. These organizations
maintained that this lack of scoping contradicts the proposed guidance
found in paragraph 46.200(b). These commenters stated that federal
agencies are required to ensure proper public involvement when
implementing NEPA and suggested public scoping assists in making an
informed decision.
Response: Although scoping is not required for the preparation of
an EA (CEQ regulations at 40 CFR 1501.7 specifically reference the
preparation of an EIS), the Department encourages the use of scoping
where appropriate as it does represent a form of public involvement,
which is a requirement of EAs. The Department has added language to
clarify the relationship between this section and section 46.305. In
addition, in contrast to the rule as proposed, the Department has also
clarified that while public notification and public involvement are
required to the extent practicable in the preparation of an EA, the RO
has the discretion to determine the manner of this public notification
and public involvement. See paragraph 46.305(a). Scoping is not a step
necessary to document a CE. The Department recognizes and acknowledges
the importance of scoping as a form of public involvement and
participation in the NEPA process, wherever it is appropriate, in that
it can serve the purpose of informed decision making.
Comment: One commenter recommended clarification of
``interdisciplinary considerations'' in the proposed rule.
Response: This rule ensures that the use of the natural, social,
and the environmental sciences as required under section 102(2)(A) of
NEPA. As recommended by the commenter, we have clarified this provision
by replacing the phrase ``interdisciplinary considerations'' in
paragraph 46.235(a) with the phrase ``interdisciplinary approach'' as
provided in 40 CFR 1502.6.
Section 46.240 Establishing time limits for the NEPA process. The
section requires bureaus to establish time limits to make the NEPA
process more efficient.
Comment: One commenter pointed out that the proposed rule does not
explain why time limits should be established. This commenter
recommended the addition of specific
[[Page 61307]]
guidance and direction to the proposed rule so bureau staff can process
NEPA documents with minimal delay.
Response: CEQ regulations at 40 CFR 1501.8 encourage federal
agencies to set time limits appropriate to individual actions. This
rule requires individual bureaus to establish time limits, as
appropriate, to expedite the NEPA process and to ensure efficiency,
especially when project completion may be time sensitive or when
statutory or regulatory timeframes may be applicable. The Department
believes individual bureaus are best situated to establish time frames
on a case-by-case basis, and does not deem it necessary to implement
specific additional guidance to ensure that delays are not encountered
in the NEPA process.
Comment: Another commenter stated that the proposed rule appears to
be focused solely on internal administrative factors and fails to
acknowledge that complex projects and potential impacts could seriously
affect timelines. Commenters also suggested that the availability of
the public to participate in the process needs to be considered and
accounted for when setting time limits. Multiple commenters supported
establishing time limits for the NEPA process on a case-by-case basis,
as long as the time limits do not impose a schedule that cannot
facilitate the project proponent's goals and objectives for the
proposed action.
Response: The Department does not have a prescribed time limit for
each proposed step in the NEPA process. In each case, time limits are
set based on a consideration of factors such as funding, staff
availability, public needs, and the complexity of the proposed action.
The Department realizes that the proponent's goals and objectives are a
consideration in scheduling the time considerations, as well as the
factors mentioned above.
Comment: Several commenters requested an addition to the proposed
rule ``that cooperating agencies represent that they have sufficient
qualified staff and necessary resources to participate as a cooperating
agency on the project and meet project deadlines.'' Several commenters
also recommended several additions to the proposed rule to strengthen
time limit requirements.
Response: The MOU as required under paragraph 46.225(d) is a
mechanism for establishing that such cooperating agencies represent
that they have sufficient qualified staff to participate on the project
and meet project deadlines. The Department does not believe any change
to the final rule is necessary.
Subpart D: Environmental Assessments
In the conversion from 516 DM Chapter 3 to 43 Part 46 Subpart D, we
have written this rule to incorporate procedural changes, expand upon
existing procedures, give greater discretion and responsibilities to
bureaus, and provide clarity in the EA process.
Section 46.300 Purpose of an EA and when it must be prepared. This
section clarifies that the action being analyzed is a ``proposed''
action. It expands upon the purpose and clarifies when to prepare an
EA.
Comment: One group recommended that the Department add a provision
to assure that all decisions made by the RO after preparing an EA or an
EA and FONSI are in writing and include the Official's reasoning behind
that decision.
Response: This rule addresses the Department's NEPA procedures and
not the Department's decision-making authorities. The Department has
decided that documentation requirements for decisions on proposed
actions made on the basis of preparation of EAs and FONSIs are outside
the scope of this rule. That is, bureau decision making itself is
governed by Department and bureau-specific authorities. Section 46.325
describes the culmination of the EA process rather than documentation
of a final decision on the proposed action and has been edited to
ensure this point is clearly made.
Comment: Another group stated that wording in paragraph (a), in the
context of the Bureau of Indian Affairs, may be misleading since many
EAs are prepared by a tribal government agency. These commenters
suggested that paragraph (a) be revised as follows: ``A bureau must
ensure that an EA is prepared for all proposed Federal actions * * *''
Response: The Department concurs and has revised the language at
paragraph 46.300(a) to reflect the suggested change.
Section 46.305 Public involvement in the EA process. This section
incorporates procedural changes and differentiates the requirements for
public involvement in the EA and EIS processes. This section has been
revised from the proposed to require bureaus, to the extent
practicable, to provide for public notification and public involvement
when an environmental assessment is being prepared. This represents a
change from the rule as proposed, which had included a requirement that
``The bureau must provide for public notification when an EA is being
prepared.'' The Department has made this change in order to be more
consistent with CEQ regulations, which do not require bureaus to
provide such notice in each and every instance, but only require that
Federal agencies ``shall to the fullest extent possible encourage and
facilitate public involvement in decisions which affect the quality of
the human environment.'' 40 CFR 1500.2(d). With respect to EAs, CEQ
regulations require that agencies provide notice of the availability of
such environmental documents, but are otherwise quite general in
approach to public involvement in EAs. See 40 CFR 1501.4(b) and 1506.6.
As the Department's bureaus prepare thousands of EAs each year--many
times for routine matters for which there are not categorical
exclusions, but for which there is no interest on the part of the
public--a categorical public notification requirement would prove a
fairly substantial burden. Therefore, discretion is left to the RO in
each case to determine how best to involve the public in a decision
that affects the quality of the human environment.
This section has also been expanded to give bureaus the discretion
to provide cooperating agency status for EAs. It specifies that the
publication of a draft EA for public comment is one method available
for public involvement, but it is not required.
Comment: Some commenters supported this section of the proposed
rule as it is currently written. These commenters believed that the
proposed rule is consistent with CEQ regulations, which only require
public involvement in EAs to the extent practicable.
Response: The Department appreciates the comments and has clarified
that because notification is a means of public involvement, it too is
subject to the qualifier ``practicable'' and has revised the final rule
as described above.
Comment: This section of the proposed rule directs bureaus to
consider comments that are ``timely'' received. One commenter
maintained that the proposed rule did not adequately define ``timely.''
This commenter also recommended stating in the rule ``that if no
comments are received during this 30-day comment period, the decision
is made using the content of the draft document.''
Response: Publication of a ``draft'' EA is not required. The RO has
the discretion whether to invite comments on an EA. If an RO requests
comments, there will be a stated time limit to the comment period.
Comments not received within this stated time limit may be deemed
untimely by the RO. It
[[Page 61308]]
is left to the discretion of the RO to take action when comments have
been received after the end of the comment period.
Comment: Several commenters also supported the proposed provision
which would allow cooperating agencies to participate in the
development of EAs. They recommended rewording of the proposed rule to
``encourage'' cooperating agency participation, not merely ``permit''
this participation.
Response: The rule has used ``may allow'' rather than the term
``encourage,'' because cooperating agency involvement in an EA is a
matter of discretion for the RO; no change is made to the final rule.
Comment: Many commenters supported publication of draft EAs and
recommended modification of the proposed rule to support publication of
draft EAs. These commenters believed that this section of the proposed
rule is in violation of CEQ direction and that public review of
environmental documents has the potential to identify information about
impacts or resource uses that would be otherwise unknown.
Response: The manner of public involvement, including the
publication of a draft EA, is a matter of discretion for the RO; this
provision is consistent with 40 CFR 1501.3.
Comment: Several commenters expressed disappointment that ``the
language in the Department's NEPA proposed rule focuses on how not to
provide public involvement opportunities in section 46.305.'' This
group maintained that it is essential that the public effectively be
involved in the NEPA process, that public participation is a
fundamental component of NEPA, and that public involvement extends to
all ``environmental documents,'' including EAs. These commenters urged
the Department to include positive language in the proposed rule to
involve the public in the preparation of an EA, including requiring
publishing of draft EAs for public comment, and establishing clear and
specific guidelines for public involvement in the EA process.
Response: The Department strongly encourages public involvement and
participation in the NEPA process at all stages. However, consistent
with CEQ regulations, the Department's final rule distinguishes between
``public involvement'' and ``public comment.'' With respect to EISs,
CEQ's regulations specify that the public must have the opportunity to
comment on a draft EIS. By contrast, the CEQ regulations do not specify
that public involvement should take any particular form for EAs, as
recognized by every court that has decided the issue. Therefore, the
Department's final rule clarifies that the RO has the discretion to
determine how public involvement in the preparation of an EA is to
occur, depending on the particular circumstances surrounding the
proposed action. Bureaus engage in a wide variety of routine actions,
for which EAs are prepared (e.g., approval of replacement of culverts,
erection of fences, etc.). Therefore, it is neither necessary nor
practical for public comment to be required for each of these EAs.
Public involvement can take a variety of forms, ranging from
notification on bureau or field office Web sites to the holding of
public meetings. Some of the bureaus provide more specific direction on
facilitating public involvement (see 516 DM Chapters 8-15 and bureau
handbooks).
Comment: Another commenter recommends that the proposed rule should
ensure that communities and tribes potentially impacted by the proposed
action have adequate opportunities to participate in the development of
an EA.
Response: See response above regarding the CEQ requirement
respecting public involvement. The circumstances surrounding each
proposed action may interest a variety of members of the public,
including, but not limited to, communities and tribes potentially
impacted by the proposed action. The RO has the discretion to implement
public notification and public involvement measures appropriate to the
proposed action, and affected communities. In addition, as noted above,
and independent of its responsibilities under NEPA, the United States
has a government-to-government relationship with federally-recognized
tribes. In accordance with this responsibility, the Department
specifically provides for consultation, coordination and cooperation
within the framework of government-to-government consultation.
Section 46.310 Contents of an EA. This section establishes new
language outlining what information must be included in an EA. It
describes the requirements for alternatives, if any, and provides for
incorporating adaptive management strategies in alternatives. Sections
on tiered analysis, from 516 DM Chapter 3, are found in subpart B of
this rule, since this information pertains to both EISs and EAs.
Comment: Several commenters supported this section of the proposed
rule as it is currently drafted. These commenters maintained that CEQ
regulations only require that an EA contain a brief discussion of the
environmental impacts of the proposed action and alternatives.
Response: The Department appreciates the comments.
Comment: Other commenters stated that this section of the proposed
rule should be removed because it conflicts with NEPA, CEQ regulations,
and existing case law.
Response: The Department disagrees. This section fully complies
with NEPA and CEQ regulations, as well as CEQ guidance. On September 8,
2005, the CEQ issued EA guidance to Federal agencies entitled
``Emergency Actions and NEPA'' that explained language at section
102(2)(E) of NEPA ``unresolved conflicts concerning alternative uses of
available resources'' (42 U.S.C. 4332(2)(E)). The CEQ guidance states:
``When there is consensus about the proposed action based on input from
interested parties, you can consider the proposed action and proceed
without consideration of additional alternatives. Otherwise, you need
to develop reasonable alternatives to meet project needs'' (Attachment
2 ``Preparing Focused, Concise and Timely Environmental Assessments'',
http://ceq.eh.doe.gov/nepa/regs/Preparing_Focused_Concise_and_Timely_EAs.pdf).
Comment: Several commenters stated that the proposed rule calls for
a superficial analysis of impacts, which creates the potential for
inadequate research. These commenters were concerned that this
superficial analysis will not provide an adequate analysis of impacts,
will only serve to exacerbate conflict and will result in poor
decision-making and possible litigation.
Response: The Department disagrees. CEQ regulations describe EAs as
``concise'' documents that ``briefly'' provide information sufficient
to determine whether preparation of an EIS is required. CEQ has issued
guidance consistent with this idea (see September 8, 2005 CEQ guidance
referenced above). The Department does not believe that conciseness
necessarily leads to a superficial analysis.
Comment: These commenters therefore suggested that ``consensus'' be
changed to ``unanimity'' to assure that there is no confusion about the
limited circumstances in which paragraph 46.310(b) applies.
Response: ``Unanimity'' is not required; therefore, the Department
declines to make the suggested alteration to the final rule.
Comment: One commenter suggested that the cumulative effects of the
proposed action and other previous actions should be included in the
list of things that must be discussed in an EA.
[[Page 61309]]
Response: This rule does not attempt to alter the requirements of
the CEQ regulations. Rather, paragraph 46.310(a)(3) of the Department's
final rule requires that EAs include brief discussions of the
environmental impacts of the proposed action. Environmental impacts
include direct, indirect and cumulative impacts (40 CFR 1508.7 and
1508.8). A separate listing of the requirement to include discussion of
any cumulative impacts is not necessary.
Section 46.315 How to format an EA. This section provides
clarification on the EA format.
No comments were received on this provision.
Section 46.320 Adopting EAs prepared by another agency, entity, or
person. In this section, the term ``and other program requirements''
has been added to the compliance stipulations. It also expands the
requirements of the RO in adopting another agency's EA.
Comment: One commenter suggested that a new section be added to the
proposed rule which includes the requirement that the RO ``consults
with other agencies that have regulatory authority over the project''
when adopting an EA prepared by another agency. This commenter
maintained this will help ensure that other affected agencies agree
with the adoption. Another organization suggested that this section of
the proposed rule should state that an Indian tribe may be the
applicant.
Response: The determination to adopt another agency's EA is left
solely to the discretion of the RO. However, the Department expects
that the RO will consult with any other agency that has regulatory
authority over the project that is the subject of a bureau's proposed
action and environmental analysis. In fact, this final rule provides at
section 46.155: ``The Responsible Official must whenever possible
consult, coordinate, and cooperate with relevant State, local, and
tribal governments and other bureaus and Federal agencies concerning
the environmental effects of bureau plans, programs, and activities
within the jurisdictions or related to the interests of these
agencies.'' This provision applies to proposed actions supported by
both EAs and EISs. As such no change has been made to section 46.320.
The Department recognizes generally that an Indian tribe may be an
applicant, as well as a State or other unit of government; paragraph
46.300(a) has been modified to read: ``A bureau must ensure that an EA
is prepared for all proposed Federal actions'' in order to reflect that
it may be the applicant who is preparing the EA, especially when a
tribe is the applicant. No other change in this respect has been made
to the final rule.
Section 46.325 Conclusion of the EA process. Documentation
requirements for decisions made on the basis of EAs and FONSIs are
beyond the scope of this rule. After a bureau has completed an EA for a
proposed action, the bureau will make a finding of no significant
impact, or will determine that it is necessary to prepare an EIS, in
which case, the bureau will publish a Notice of Intent in the Federal
Register or will take no further action on the proposal.
Comment: Several commenters ``suggested that the requirement that a
decision be documented also include a requirement that the document be
made public.''
Response: Bureau decision documents are public documents. While
some bureaus routinely publish these documents (for instance on bureau
or field office Web sites), the Department is not including a
requirement that all decision documents be published. Decision
documents are available from bureaus upon request.
Subpart E: Environmental Impact Statements
This subpart takes the place of 516 DM Chapter 4, with following
exceptions.
The language from 516 DM Chapter 4 that simply reiterates the CEQ
regulations is not included in subpart E of this rule. Those DM
sections are: statutory requirements, cover sheet, summary, purpose and
need, appendix, methodology and scientific accuracy, proposals for
legislation, and time periods.
Sections on tiering, incorporation of referenced documents into
NEPA analysis, incomplete or unavailable information, adaptive
management, and contractor prepared environmental documents, from 516
DM Chapter 4 are found in subpart B of this rule since that information
pertains to EISs and EAs.
The phrase ``environmentally preferable alternative'' is found in
the definitions, subpart A. This phrase expands on the definition that
currently exists in 516 DM 4.10(A)(5).
This rule also incorporates procedural changes, clarifies the
extent of discretion and responsibility that may be exercised by
bureaus and provides clarity in the EIS process.
Section 46.400 Timing of EIS development. This section describes
when an EIS must be prepared.
Comment: One commenter recommended revising the definition of
``environment'' within the proposed rule to avoid disputes.
Response: Neither the Department's proposed nor final rule includes
a definition of ``environment.'' Neither NEPA nor the CEQ regulations
define this term; however, the CEQ regulations do define ``human
environment,'' and the definitions in the CEQ regulations apply (see
sections 46.20 and 46.30). The Department does not believe that a
definition is required.
Comment: One commenter stated that it is important to note that the
RO should not have the authority to mandate whether an applicant must
pay for environmental analyses. The commenter recommended that the
applicant should be given the opportunity to voluntarily fund the NEPA
analysis. Others recommended that any reference to who pays for the
analysis be deleted from the proposed rule.
Response: The provision in the Department's final rule specifies
only that the RO ``must inform applicants as soon as practicable of any
responsibility they will bear for funding environmental analyses
associated with their proposal.'' This provision refers specifically to
the responsibility of the RO to inform the applicant of any such
requirements in each instance. (As noted above in the introduction to
section 46.200, this provision has been moved from section 46.400 to
section 46.200 because it applies to EAs as well, and the application
to EAs was inadvertently left out of the proposed rule.) The question
of whether an RO may require an applicant to pay for NEPA analysis is
outside the scope of this rule because programs and bureaus have
different payment requirements, for example, under their cost recovery
authority, if applicable.
Section 46.405 Remaining within page limits. This section
encourages bureaus to keep EISs within the page limits described in the
CEQ regulations using incorporation of referenced documents into NEPA
analysis and tiering.
No comments were received on this provision.
Section 46.415 EIS Content, Alternatives, Circulation and Filing
Requirements. This section provides direction for the development of
alternatives, establishes language on the documentation of
environmental effects with a focus on NEPA statutory requirements, and
provides direction for circulating and filing the draft and final EIS
or any supplement(s) thereto. The Department changed the title of this
section and added a sentence to address
[[Page 61310]]
Federal Advisory Committee Act (FACA) implications.
Comment: Some commenters supported this portion of the proposed
rule as it is written.
Response: The Department appreciates the comments.
Comment: One group stated that the term ``interested parties'' is
too broadly defined, resulting in significant delays in agency
decision-making. Consequently, standing would be given to parties that
otherwise would lack standing to pursue future legal action.
Response: The Department agrees that the meaning of ``interested
parties'' is potentially ambiguous and has revised this term to match
the language used in the CEQ regulations. Please see the final rule at
section 46.110, as well as the responses to comments on that section.
Comment: Some commenters believed that the cumulative effects of
the proposed action and other previous actions must also be disclosed
in an EIS. Consequently, these commenters recommended adding cumulative
effects to the list of terms that must be disclosed in the contents of
an EIS.
Response: Paragraph 46.415(a)(3) of the Department's final rule
requires that an EIS disclose ``the environmental impact of the
proposed action.'' Environmental impact includes direct, indirect and
cumulative impacts (40 CFR 1508.7 and 1508.8). The Department does not
believe that a separate listing of the requirement to include
discussion of cumulative impacts is necessary.
Comment: Several commenters commented on paragraph (c), which
provides ``the RO shall make those preliminary draft and final EISs
available to those interested and affected persons and agencies for
comment.'' The main concern discussed by commenters is that the word
``shall'' implies that the RO will be required to circulate preliminary
drafts of EISs. These commenters recommended that the proposed rule
should allow public circulation of preliminary EISs when the RO
determines that such circulation would be beneficial, but public
disclosure should not be required. Other commenters stated it is
inappropriate for agencies to share preliminary EISs that represent
preliminary agency thoughts. They were concerned that public release of
a preliminary document would hinder internal discussion regarding
innovative management options available for consideration and analysis.
Response: The Department has elected not to include a ``preliminary
environmental impact statement'' in the final rule. Please see the
response above to comments on section 46.30.
Comment: One group recommended clarification of the proposed rule
by stating that the human environment changes over time, regardless of
the action being assessed under NEPA. They recommended this
clarification should ``explicitly exclude the idea that nothing changes
over time, so the no action alternative means no change.''
Response: The Department acknowledges that some clarification was
needed and added language to the final rule. Natural systems evolve
over time. The ``no action'' alternative is not the alternative that
results in ``no change'' to the environment; rather it represents the
state of the environment without the proposed action or any of the
alternatives. When the proposed action involves a proposed change in
management then, under the no action alternative, what does not change
is management direction or level of intensity.
Comment: Another commenter stated ``it is not clear from the
proposed rule how or why ``incremental changes'' will be considered as
alternatives'' and asked for additional detail regarding the
``incremental process'' and how it interacts with the alternative
discussion.
Response: The Department appreciates this comment. The intent of
this provision is that modifications to alternatives developed through
a collaborative process, may, themselves, be considered alternatives to
a proposed action. To avoid confusion, the final rule no longer uses
the term ``incremental'' when dealing with alternatives.
Comment: Many commenters fully supported and encouraged analysis of
the no action alternative. Several recommended clarification in the
proposed rule on how the tenets of adaptive management will work with
the requirements for clearly articulating and pre-specifying the
adjustments and the respective environmental effects that might later
occur. Another commenter encouraged the Department to specify in the
proposed rule that alternatives considered throughout the NEPA process
must be capable of achieving the project goals.
Response: The Department believes that no further clarification is
necessary. The intent of the provision respecting adaptive management
is to clarify that the use of an adaptive management approach does not
preclude the necessity of complying with NEPA. Each proposed action,
including possible changes in management made as a result of an
adaptive management approach may be analyzed at the outset of the
process or the changes in management made may be analyzed when
implemented.
Comment: Several commenters strongly opposed the idea that the RO,
with or without input from any interested parties, would be permitted
to make modifications to a proponent's proposed action. These
commenters recommend eliminating this language in its entirety from the
proposed rule.
Response: Bureaus would analyze reasonable alternatives that would
meet the purpose and need for action. In determining the range of
reasonable alternatives, the range may in some cases be limited by the
proponent's proposed action, but the RO must still evaluate reasonable
alternatives within that range. As such the RO may include additional
alternatives for analysis, including those which represent different
modifications of the proposed action. No change to the provision has
been made.
Comment: Some commenters requested clarification on the public
comment opportunity that follows the publication of a final EIS. They
maintained the rule should explain that the public can submit comments
on a final EIS prior to an agency's final decision.
Response: CEQ regulations at 40 CFR 1506.10(b)(2) require a 30-day
waiting period between publication of the final EIS and signing of a
ROD. CEQ guidance states: ``During that period, in addition to the
agency's own internal final review, the public and other agencies can
comment on the final EIS prior to the agency's final action on the
proposal. CEQ's ``Forty Most Asked Questions.'' Therefore, while this
period is not a formal comment period, the public may comment after the
publication of the final EIS.
Section 46.420 Terms used in an EIS. This section describes terms
that are commonly used to describe concepts or activities in an EIS,
including: (a) Statement of purpose and need, (b) Reasonable
alternatives, (c) Range of alternatives, (d) Proposed action, (e)
Preferred alternative, and (f) No action alternative. Definitions for
proposed action and no action alternative have been moved to the
definitions in section 46.30 as they may both be applicable to EAs as
well as EISs. Comments and responses on these terms, however, are
below. In order to clarify that it is the bureau's exercise of
discretion that constitutes a proposed action that is subject to NEPA
requirements, not just that the bureau might have a statutory role over
a non-Federal entity's planned activity, the final rule has been
changed to read ``discretion'' rather than
[[Page 61311]]
``authority'' in proposed paragraph 46.420(d), which is now in section
46.30. Section 46.30 explains that a ``proposed action'' includes ``the
bureau's exercise of discretion over a non-Federal entity's planned
activity that falls under a Federal agency's authority to issue
permits, licenses, grants, rights-of-way, or other common Federal
approvals, funding, or regulatory instruments.''
Comment: Several commenters stated that the proposed rule should
clarify that, in order for an alternative to be reasonable, it must
also be technically and economically feasible based upon input from the
project proponent. These commenters stated that the term ``range of
alternatives'' is defined without regard to the technical and economic
feasibility of the alternatives.
Response: The Department's final rule, at paragraph 46.420(b),
specifies that the term ``reasonable alternative'' includes
alternatives that are technically and economically practical or
feasible and that satisfy the purpose and need. The Department agrees
that the project proponent, as a member of the public, may provide
input to the bureau with respect to the technical and economic
feasibility of alternatives. Ultimately, however, the bureau determines
whether an alternative is technically and economically practical or
feasible and meets the purpose and need of the proposed action. The
Department did not include a reference to technical and economic
feasibility in the definition of ``range of alternatives.'' Consistent
with CEQ's regulations, 40 CFR 1505.1(e), and as explained in CEQ's
``Forty Most Asked Questions'' document, the range of alternatives
includes all or a reasonable number of examples covering the full
spectrum of reasonable alternatives, each of which must be rigorously
explored and objectively evaluated, as well as those other alternatives
which are eliminated from detailed study with a brief discussion of the
reasons for eliminating them. This includes alternatives that may not
be technically and economically feasible. The Department's final rule,
at paragraph 46.420(c), maintains this broad meaning of ``range of
alternatives.''
Comment: Many commenters recommended that the rule expressly state
that the applicant's goals should be the primary consideration in the
development of the statement of purpose and need. These commenters
stated the Department should remove language in the proposed rule that
requires agencies to consider the public interest in approving an
application.
Response: The Department agrees that the bureau should consider the
needs and goals of the parties involved, including the applicant.
However, the public interest is also a key consideration under NEPA. As
such the Department has not changed the language of this provision in
the final rule.
Comment: One group recommended using the definition in paragraph
46.420(b) for the feasibility requirement throughout the proposed rule
because it is the most complete definition.
Response: The Department concurs with the intent of this
recommendation and has implemented this recommendation by changing
46.415(b) to read ``range of alternatives'' rather than ``reasonable
alternatives,'' as ``range of alternatives'' as defined at paragraph
46.420(c) incorporates the definition of ``reasonable alternatives'' at
paragraph 46.420(b).
Comment: One commenter stated that the definition of ``range of
alternatives'' is circular and should be revised.
Response: The Department agrees and has clarified that the phrase
``rigorously explored and objectively evaluated'' in the CEQ
regulations applies only to reasonable alternatives.
Comment: One commenter recommended that the Department distinguish
the proposed federal action from the proposed project or activity for
which the federal action is necessary.
Response: The Department agrees and has clarified the language of
section 46.30 (formerly proposed as paragraph 46.420(d)). Paragraph
46.420(d) explains that a ``proposed action'' includes ``the bureau's
exercise of discretion over a non-Federal entity's planned activity
that falls under a Federal agency's authority to issue permits,
licenses, grants, rights-of-way, or other common Federal approvals,
funding, or regulatory instruments.''
Comment: A commenter agreed with the statement that no action can
mean either no action or no change and that the proposed rule should
acknowledge that the effect of the no action alternative is not always
maintenance of the status quo.
Response: As specified in proposed paragraph 46.420(f) and now at
section 46.30, the Department agrees that the no action alternative has
two interpretations--``no change from a current management direction or
level of management intensity'' or ``no project.'' Natural systems
evolve over time. The ``no action'' alternative is not the alternative
that results in ``no change'' to the environment; rather it represents
the state of the environment without the proposed action or any of the
alternatives. The Department has made minor edits to this section to
clarify this point.
Comment: One individual recommended inserting ``national policies''
after ``giving consideration to'' in paragraph (e).
Response: The Department does not believe it is necessary to
specifically include ``national policies'' as one of the factors that
the bureau considers in identifying the preferred alternative. Proposed
paragraph (e), now (d), refers to ``other factors,'' which is broad
enough to include a variety of considerations, including, if
appropriate, national policies.
Comment: One commenter stated that it is unclear whether the terms
``practical'' and ``feasible'' are intended to be synonymous within the
proposed rule.
Response: These terms are not intended to be synonymous. CEQ's
``Forty Most Asked Questions'' explains ``reasonable alternatives
include those that are practical or feasible from the technical and
economic standpoint and using common sense.'' Any given reasonable
alternative could be practical, feasible, or both.
Comment: One commenter encouraged the Department to revise the
proposed rule to clarify and reflect established NEPA precedent that
agencies need not conduct a separate analysis of alternatives that have
substantially similar consequences.
Response: The Department agrees that bureaus need not separately
analyze alternatives that have been shown to have substantially similar
environmental consequences. This is a well-established principle; no
change to the final rule is necessary.
Section 46.425 Identification of the preferred alternative in an
EIS. This section clarifies when the preferred alternative must be
identified.
Comment: Several groups questioned why more than one preferred
alternative would be necessary and recommend that only one preferred
alternative be allowed to avoid confusion.
Response: The Department's final rule is consistent with CEQ
regulations, which expressly contemplate situations in which more than
one preferred alternative may exist. 40 CFR 1502.14(e). Rather than
confusing the public, the Department believes that in certain
circumstances presentation of more than one preferred alternatives may
encourage public involvement in the process.
Section 46.430 Environmental review and consultation requirements.
This section establishes procedures for an EIS that also addresses
other
[[Page 61312]]
environmental review requirements and approvals. It should be noted
that this section allows for the completion of the NEPA analysis prior
to obtaining all permits. However, if the terms of the permit are
outside of the scope of analysis, additional NEPA analysis may be
required.
Comment: One commenter commented that CEQ is currently undertaking
a project to integrate review under NEPA and the National Historic
Preservation Act (NHPA). This commenter recommended that the Department
assure effective integration of that project's results with the
proposed rule. In order to protect statutory rights of Indian tribes,
another group recommended integration of regulations from the Advisory
Council on Historic Preservation in this section of the proposed rule.
Response: Regulations implementing the National Historic
Preservation Act (NHPA) at 36 CFR Part 800 encourage Federal agencies
to coordinate compliance with section 106 of the NHPA with steps taken
to meet the requirements of NEPA (36 CFR 800.8(a)). The Department is
aware of the CEQ initiative to develop guidance to integrate review
under NEPA and the NHPA, as called for in both the NHPA and the CEQ
regulations (40 CFR 1502.25(a)) and will work with CEQ to integrate any
such guidance in the Department's directives as appropriate. Please see
response to comments addressing section 46.110 above regarding the
Department's fulfillment of its responsibilities toward Indian tribes.
Comment: One group strongly supported consolidation of processes
whenever possible to reduce delays and eliminate duplication of effort.
This group proposed revision of the proposed rule to promote the
consolidation of processes ``to the extent possible and otherwise not
prohibited by law.'' This group also recommended the establishment of
an exemption for mining operations based on the ``functional
equivalence doctrine.'' They maintained that other laws and regulations
applicable to the mining operations provide a rigorous framework for
providing a ``harder look'' at environmental consequences than NEPA.
Response: The Department appreciates the support for its efforts to
encourage consolidation of processes whenever possible. However, the
Department does not believe the revision proposed by the commenter to
paragraph 46.430(b) is necessary. The Department does not believe such
an exemption for mining operations as advocated by the commenter is
warranted, as it addresses matters beyond the scope of this rulemaking.
Comment: One commenter recommended revision of ``Paragraph (a) to
clarify that an EIS need only identify and discuss studies relied upon
for other consultation and review processes if the EIS is intended to
serve as the NEPA compliance for those review processes.''
Response: The Department believes no revision to the final rule is
necessary. When paragraph 46.430(a) states ``An EIS that also addresses
other environmental review and consultation requirements. * * *'' this
means that it is precisely when the EIS in question is to serve as the
NEPA compliance (in whole or in part) for the other environmental
review and consultation requirements that the EIS needs to identify and
discuss studies relied upon for these other review and consultation
processes.
Section 46.435 Inviting comments. This section requires bureaus to
request comments from Federal, State, and local agencies, or tribal
governments, and the public at large. This section also clarifies that
bureaus do not have to delay a final EIS because they have not received
comments.
Comment: One group proposed revisions to the proposed rule, which
include: (1) Requesting comments from any potentially affected tribal
government, (2) recognizing the federal government's continuing
obligation to consult with tribal governments prior to making decisions
which may impact tribal rights, (3) revising paragraph (c) to include
all lands and waters within the boundaries of tribal lands, (4)
inserting language to explicitly include Alaska Native tribes, and (5)
including additional clauses covering various situations in which the
Department must invite comments from a tribe. This group proposed these
revisions because it believes the current language could be interpreted
too narrowly by the Department bureaus, resulting in bureaus deciding
not to request comments from tribal governments, even though a proposed
action may affect tribal rights or interests.
Response: CEQ regulations at 40 CFR 1503.1(a)(4) require that
agencies shall request the comments on a draft EIS from ``the public,
affirmatively soliciting comments from those persons or organizations
who may be interested or affected.'' This would necessarily include
``any potentially affected tribal government'' regardless of whether
the proposed action may affect the environment of Indian trust or
restricted land or other Indian trust resources, trust assets, or
tribal health and safety, as specified in 46.435(c). In view of the CEQ
regulations, the Department does not believe it is necessary to include
the commenter's proposed language in this final rule. For instance,
under 40 CFR 1503.1(a)(4), the bureaus would need to request comments
from those persons or organizations affected by impacts to the
resources noted by the commenters, including ``one or more historic
properties to which the tribe attaches religious and cultural
significance'' or ``wildlife or plant species that are important to the
tribe for cultural purposes.'' Likewise, if any member of the public
specifically requests information regarding the analysis of effects of
a proposed action on a specific identified area, the bureau would
provide that information.
This being said, the requirement to engage in government-to-
government consultation with Indian tribes is a requirement apart from
NEPA, and, in effect, broadens any consultation that needs to take
place as a function of compliance with NEPA. The Department has other,
more specific directives addressing government-to-government
consultation, as well as how the Department is to fulfill its trust
responsibilities. See, e.g., 512 DM 2: ``Departmental Responsibilities
for Indian Trust Resources''; ECM97-2 ``Departmental Responsibilities
for Indian Trust Resources and Indian Sacred Sites on Federal Lands''.
Comment: One commenter encouraged the Department to provide for
better coordination with permit applicants when the federal action
being examined involves the issuance of a federal permit or
authorization.
Response: Please see discussion, above, regarding paragraph
46.430(a).
Section 46.440 Eliminating duplication with State and local
procedures. This section allows a State agency to jointly prepare an
EIS, if applicable.
No comments were received addressing this provision.
Section 46.445 Preparing a legislative EIS. This section ensures
that, when appropriate, a legislative EIS will be included as a part of
the formal transmittal of a legislative proposal to the Congress.
No comments were received addressing this provision.
Section 46.450 Identifying the environmentally preferable
alternative. This section provides for identifying the environmentally
preferable alternative in the ROD.
Comment: One commenter supported this part of the proposed rule as
it is written. Multiple commenters oppose
[[Page 61313]]
this section of the proposed rule and urge the Department to delete
this section from the proposed rule. They believed ``that this
provision is not necessary in light of the existing CEQ regulation
found at 40 CFR 1505.2.'' In the event that Department does not remove
this section from the proposed rule, these commenters recommended that
the Department revise this section to include clarification that this
rule in no way obligates agencies to identify and select an
``environmentally preferable alternative'' during its NEPA analysis.
Response: The Department appreciates these comments, but believes
this provision is necessary to distinguish between ``identifying'' and
``selecting'' an environmentally preferable alternative, both for
Departmental personnel and members of the public. Although the
environmentally preferable alternative must be identified in the ROD,
the RO is not required to select the environmentally preferable
alternative as the alternative that will be implemented. No change is
made in the final rule.
Procedural Requirements
Regulatory Planning and Review (E.O. 12866)
This is a significant rule and has been reviewed by the Office of
Management and Budget (OMB) under Executive Order 12866. This rule:
(1) Is not an economically significant action because it will not
have an annual effect of $100 million or more on the economy nor
adversely affect productivity, competition, jobs, the environment,
public health or safety, nor state or local governments.
(2) Will not interfere with an action taken or planned by another
agency.
(3) Will not alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
of such programs.
(4) Raises novel policy and legal issues. It is a significant
rulemaking action subject to OMB review because of the extensive
interest in Department planning and decision making relating to NEPA.
In accordance with the Office of Management and Budget (OMB)
Circular A-4, ``Regulatory Analysis,'' the Department has conducted a
cost/benefit analysis. The analysis compared the costs and benefits
associated with the current condition of having Departmental
implementing procedures combined with Departmental explanatory guidance
in the DM and the condition of having implementing direction in
regulations and explanatory guidance in the DM.
Many benefits and costs associated with the rule are not
quantifiable. Some of the benefits of this rule include collaborative
and participatory public involvement to more fully address public
concerns, timely and focused environmental analysis, and flexibility in
preparation of environmental documents. These will be positive effects
of the new rule.
Moving NEPA procedures from the DM to regulations is expected to
provide a variety of potential beneficial effects. This rule would meet
the requirements of 40 CFR 1507.3 by placing the Department's
implementing procedures in their proper regulatory position. The
Department will maintain Department- and bureau-specific directives in
the DM and bureau handbooks to assist field offices. This will
facilitate timely bureau responses to procedural interpretations,
training needs, and editorial changes to addresses and Internet links
to assist bureaus when implementing the NEPA process. Finally, the
changes to the Department NEPA procedures are intended to provide the
Department specific options to meet the intent of NEPA through
increased emphasis on collaboration and the use of a consensus-based
approach when practicable.
Thus, while no single effect of this rule creates a significant
quantifiable improvement, the benefits outlined above taken together
create the potential for visible improvements in the Department's NEPA
program. Further discussion of the costs and benefits associated with
the rule is contained in the economic analysis which is incorporated in
the administrative record for this rulemaking and may be accessed on
the Department's Office of Environmental Policy and Compliance Web site
located at: http://www.doi.gov/oepc.
Regulatory Flexibility Act
The Department certifies that this document will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This
document provides the Department with policy and procedures under NEPA
and does not compel any other party to conduct any action.
Congressional Review Act
The Administrator of the Office of Information and Regulatory
Affairs has determined that this rule is not a major rule under 5
U.S.C. 804(2).
Unfunded Mandates Reform Act
Under Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this rule
on State, local, and tribal governments and the private sector. This
rule does not compel the expenditure of $100 million or more by any
State, local, or tribal government or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
Takings (E.O. 12630)
This rule has been analyzed in accordance with the principles and
criteria contained in E.O. 12630, Governmental Actions and Interference
with Constitutionally Protected Property Rights, and it has been
determined that the rule does not pose the risk of a taking of
Constitutionally protected private property.
Federalism (E.O. 13132)
The Department has considered this rule under the requirements of
E.O. 13132, Federalism. The Department has concluded that the rule
conforms to the federalism principles set out in this E.O.; will not
impose any compliance costs on the States; and will not have
substantial direct effects on the States or the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
the Department has determined that no further assessment of federalism
implications is necessary.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Does not unduly burden the judicial system;
(b) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity, and be
written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175)
In accordance with E.O. 13175 of November 6, 2000, and 512 DM 2, we
have assessed this document's impact on tribal trust resources and have
determined that it does not directly affect tribal resources since it
describes the Department's procedures for its compliance with NEPA.
[[Page 61314]]
Paperwork Reduction Act
This rule does not contain information collections subject to OMB
approval under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).
National Environmental Policy Act
The CEQ does not direct agencies to prepare a NEPA analysis or
document before establishing agency procedures that supplement the CEQ
regulations for implementing NEPA. Agency NEPA procedures are
procedural guidance to assist agencies in the fulfillment of agency
responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
determination that establishing agency NEPA procedures does not require
NEPA analysis and documentation has been upheld in Heartwood, Inc. v.
U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd
230 F.3d 947. 954-55 (7th Cir. 2000).
Data Quality Act
In developing this rule we did not conduct or use a study requiring
peer review under the Data Quality Act (Pub. L. 106-554).
Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
Clarity of This Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
--Be logically organized;
--Use the active voice to address readers directly;
--Use clear language rather than jargon;
--Be divided into short sections and sentences; and
--Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments as instructed in the ADDRESSES section. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that you find unclear, which sections or sentences are too long, the
sections where you think lists or tables would be useful, etc.
List of Subjects in 43 CFR part 46
Environmental protection, EISs.
Dated: September 30, 2008.
James E. Cason,
Associate Deputy Secretary.
0
For the reasons given in the preamble, the Office of the Secretary is
adding a new part 46 to Subtitle A of title 43 of the Code of Federal
Regulations to read as follows:
PART 46--IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF
1969
Sec.
Subpart A--General Information
46.10 Purpose of this part.
46.20 How to use this part.
46.30 Definitions.
Subpart B--Protection and Enhancement of Environmental Quality
46.100 Federal action subject to the procedural requirements of
NEPA.
46.105 Using a contractor to prepare environmental documents.
46.110 Incorporating consensus-based management.
46.115 Consideration of past actions in analysis of cumulative
effects.
46.120 Using existing environmental analyses prepared pursuant to
NEPA and the Council on Environmental Quality regulations.
46.125 Incomplete or unavailable information.
46.130 Mitigation measures in analyses.
46.135 Incorporation of referenced documents into NEPA analysis.
46.140 Using tiered documents.
46.145 Using adaptive management.
46.150 Emergency responses.
46.155 Consultation, coordination, and cooperation with other
agencies.
46.160 Limitations on actions during the NEPA analysis process.
46.170 Environmental effects abroad of major Federal actions.
Subpart C--Initiating the NEPA Process
46.200 Applying NEPA early.
46.205 Actions categorically excluded from further NEPA review.
46.210 Listing of Departmental Categorical Exclusions.
46.215 Categorical Exclusions: Extraordinary circumstances.
46.220 How to designate lead agencies.
46.225 How to select cooperating agencies.
46.230 Role of cooperating agencies in the NEPA process.
46.235 NEPA scoping process.
46.240 Establishing time limits for the NEPA process.
Subpart D--Environmental Assessments
46.300 Purpose of an environmental assessment and when it must be
prepared.
46.305 Public involvement in the environmental assessment process.
46.310 Contents of an environmental assessment.
46.315 How to format an environmental assessment.
46.320 Adopting environmental assessments prepared by another
agency, entity, or person.
46.325 Conclusion of the environmental assessment process.
Subpart E--Environmental Impact Statements
46.400 Timing of environmental impact statement development.
46.405 Remaining within page limits.
46.415 Environmental impact statement content, alternatives,
circulation and filing requirements.
46.420 Terms used in an environmental impact statement.
46.425 Identification of the preferred alternative in an
environmental impact statement.
46.430 Environmental review and consultation requirements.
46.435 Inviting comments.
46.440 Eliminating duplication with State and local procedures.
46.445 Preparing a legislative environmental impact statement.
46.450 Identifying the environmentally preferable alternative.
Authority: 42 U.S.C. 4321 et seq. (The National Environmental
Policy Act of 1969, as amended); Executive Order 11514, (Protection
and Enhancement of Environmental Quality (March 5, 1970, as amended
by Executive Order 11991, May 24, 1977)); 40 CFR parts 1500-1508 (43
FR 55978) (National Environmental Policy Act, Implementation of
Procedural Provisions).
Subpart A--General Information
Sec. 46.10 Purpose of this part.
(a) This part establishes procedures for the Department, and its
constituent bureaus, to use for compliance with:
(1) The National Environmental Policy Act (NEPA) of 1969, as
amended (42 U.S.C. 4321 et seq.); and
(2) The Council on Environmental Quality (CEQ) regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508).
(b) Consistent with 40 CFR 1500.3, it is the Department's intention
that any trivial violation of these regulations will not give rise to
any independent cause of action.
Sec. 46.20 How to use this part.
(a) This part supplements, and is to be used in conjunction with,
the CEQ regulations except where it is inconsistent with other
statutory requirements. The following table shows the corresponding CEQ
regulations for the sections in subparts A--E of this part. Some
sections in those subparts do not have a corresponding CEQ regulation.
Subpart A 40 CFR
46.10 Parts 1500-1508
[[Page 61315]]
46.20 No corresponding CEQ regulation
46.30 No corresponding CEQ regulation
Subpart B
46.100 1508.14, 1508.18, 1508.23
46.105 1506.5
46.110 No corresponding CEQ regulation
46.115 1508.7
46.120 1502.9, 1502.20, 1502.21, 1506.3
46.125 1502.22
46.130 1502.14
46.135 1502.21
46.140 1502.20
46.145 No corresponding CEQ regulation
46.150 1506.11
46.155 1502.25, 1506.2
46.160 1506.1
46.170 No corresponding CEQ regulation
Subpart C
46.200 1501.2
46.205 1508.4
46.210 1508.4
46.215 1508.4
46.220 1501.5
46.225 1501.6
46.230 1501.6
46.235 1501.7
46.240 1501.8
Subpart D
46.300 1501.3
46.305 1501.7, 1506.6
46.310 1508.9
46.315 No corresponding CEQ regulation
46.320 1506.3
46.325 1501.4
Subpart E
46.400 1502.5
46.405 1502.7
46.415 1502.10
46.420 1502.14
46.425 1502.14
46.430 1502.25
46.435 1503
46.440 1506.2
46.445 1506.8
46.450 1505.2
(b) The Responsible Official will ensure that the decision making
process for proposals subject to this part includes appropriate NEPA
review.
(c) During the decision making process for each proposal subject to
this part, the Responsible Official shall consider the relevant NEPA
documents, public and agency comments (if any) on those documents, and
responses to those comments, as part of consideration of the proposal
and, except as specified in paragraphs 46.210(a) through (j), shall
include such documents, including supplements, comments, and responses
as part of the administrative file.
(d) The Responsible Official's decision on a proposed action shall
be within the range of alternatives discussed in the relevant
environmental document. The Responsible Official's decision may combine
elements of alternatives discussed in the relevant environmental
document if the effects of such combined elements of alternatives are
reasonably apparent from the analysis in the relevant environmental
document.
(e) For situations involving an applicant, the Responsible Official
should initiate the NEPA process upon acceptance of an application for
a proposed Federal action. The Responsible Official must publish or
otherwise provide policy information and make staff available to advise
potential applicants of studies or other information, such as costs,
foreseeably required for later Federal action.
Sec. 46.30 Definitions.
For purposes of this part, the following definitions supplement
terms defined at 40 CFR parts 1500-1508.
Adaptive management is a system of management practices based on
clearly identified outcomes and monitoring to determine whether
management actions are meeting desired outcomes; and, if not,
facilitating management changes that will best ensure that outcomes are
met or re-evaluated. Adaptive management recognizes that knowledge
about natural resource systems is sometimes uncertain.
Bureau means bureau, office, service, or survey within the
Department of the Interior.
Community-based training in the NEPA context is the training of
local participants together with Federal participants in the workings
of the environmental planning effort as it relates to the local
community(ies).
Controversial refers to circumstances where a substantial dispute
exists as to the environmental consequences of the proposed action and
does not refer to the existence of opposition to a proposed action, the
effect of which is relatively undisputed.
Environmental Statement Memoranda (ESM) are a series of
instructions issued by the Department's Office of Environmental Policy
and Compliance to provide information and explanatory guidance in the
preparation, completion, and circulation of NEPA documents.
Environmentally preferable alternative is the alternative required
by 40 CFR 1505.2(b) to be identified in a record of decision (ROD),
that causes the least damage to the biological and physical environment
and best protects, preserves, and enhances historical, cultural, and
natural resources. The environmentally preferable alternative is
identified upon consideration and weighing by the Responsible Official
of long-term environmental impacts against short-term impacts in
evaluating what is the best protection of these resources. In some
situations, such as when different alternatives impact different
resources to different degrees, there may be more than one
environmentally preferable alternative.
No action alternative.
(1) This term has two interpretations. First ``no action'' may mean
``no change'' from a current management direction or level of
management intensity (e.g., if no ground-disturbance is currently
underway, no action means no ground-disturbance). Second ``no action''
may mean ``no project'' in cases where a new project is proposed for
implementation.
(2) The Responsible Official must determine the ``no action''
alternative consistent with one of the definitions in paragraph (1) of
this definition and appropriate to the proposed action to be analyzed
in an environmental impact statement. The no action alternative looks
at effects of not approving the action under consideration.
Proposed action. This term refers to the bureau activity under
consideration. It includes the bureau's exercise of discretion over a
non-Federal entity's planned activity that falls under a Federal
agency's authority to issue permits, licenses, grants, rights-of-way,
or other common Federal approvals, funding, or regulatory instruments.
The proposed action:
(1) Is not necessarily, but may become, during the NEPA process,
the bureau preferred alternative or (in a record of decision for an
environmental impact statement, in accordance with 40 CFR 1505.2) an
environmentally preferable alternative; and
(2) Must be clearly described in order to proceed with NEPA
analysis.
Reasonably foreseeable future actions include those federal and
non-federal activities not yet undertaken, but sufficiently likely to
occur, that a Responsible Official of ordinary prudence would take such
activities into account in reaching a decision. These federal and non-
federal activities that must be taken into account in the analysis of
cumulative impact include, but are not limited to, activities for which
there are existing decisions, funding, or proposals identified by the
[[Page 61316]]
bureau. Reasonably foreseeable future actions do not include those
actions that are highly speculative or indefinite.
Responsible Official is the bureau employee who is delegated the
authority to make and implement a decision on a proposed action and is
responsible for ensuring compliance with NEPA.
Subpart B--Protection and Enhancement of Environmental Quality
Sec. 46.100 Federal action subject to the procedural requirements of
NEPA.
(a) A bureau proposed action is subject to the procedural
requirements of NEPA if it would cause effects on the human environment
(40 CFR 1508.14), and is subject to bureau control and responsibility
(40 CFR 1508.18). The determination of whether a proposed action is
subject to the procedural requirements of NEPA depends on the extent to
which bureaus exercise control and responsibility over the proposed
action and whether Federal funding or approval are necessary to
implement it. If Federal funding is provided with no Federal agency
control as to the expenditure of such funds by the recipient, NEPA
compliance is not necessary. The proposed action is not subject to the
procedural requirements of NEPA if it is exempt from the requirements
of section 102(2) of NEPA.
(b) A bureau shall apply the procedural requirements of NEPA when
the proposal is developed to the point that:
(1) The bureau has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal;
and
(2) The effects of the proposed action can be meaningfully
evaluated (40 CFR 1508.23).
Sec. 46.105 Using a contractor to prepare environmental documents.
A Responsible Official may use a contractor to prepare any
environmental document in accordance with the standards of 40 CFR
1506.5(b) and (c). If a Responsible Official uses a contractor, the
Responsible Official remains responsible for:
(a) Preparation and adequacy of the environmental documents; and
(b) Independent evaluation of the environmental documents after
their completion.
Sec. 46.110 Incorporating consensus-based management.
(a) Consensus-based management incorporates direct community
involvement in consideration of bureau activities subject to NEPA
analyses, from initial scoping to implementation of the bureau
decision. It seeks to achieve agreement from diverse interests on the
goals of, purposes of, and needs for bureau plans and activities, as
well as the methods anticipated to carry out those plans and
activities. For the purposes of this Part, consensus-based management
involves outreach to persons, organizations or communities who may be
interested in or affected by a proposed action with an assurance that
their input will be given consideration by the Responsible Official in
selecting a course of action.
(b) In incorporating consensus-based management in the NEPA
process, bureaus should consider any consensus-based alternative(s) put
forth by those participating persons, organizations or communities who
may be interested in or affected by the proposed action. While there is
no guarantee that any particular consensus-based alternative will be
considered to be a reasonable alternative or be identified as the
bureau's preferred alternative, bureaus must be able to show that the
reasonable consensus-based alternative, if any, is reflected in the
evaluation of the proposed action and discussed in the final decision.
To be selected for implementation, a consensus-based alternative must
be fully consistent with NEPA, the CEQ regulations, and all applicable
statutory and regulatory provisions, as well as Departmental and bureau
written policies and guidance.
(c) The Responsible Official must, whenever practicable, use a
consensus-based management approach to the NEPA process.
(d) If the Responsible Official determines that the consensus-based
alternative, if any, is not the preferred alternative, he or she must
state the reasons for this determination in the environmental document.
(e) When practicing consensus-based management in the NEPA process,
bureaus must comply with all applicable laws, including any applicable
provisions of the Federal Advisory Committee Act (FACA).
Sec. 46.115 Consideration of past actions in the analysis of
cumulative effects.
When considering the effects of past actions as part of a
cumulative effects analysis, the Responsible Official must analyze the
effects in accordance with 40 CFR 1508.7 and in accordance with
relevant guidance issued by the Council on Environmental Quality, such
as ``The Council on Environmental Quality Guidance Memorandum on
Consideration of Past Actions in Cumulative Effects Analysis'' dated
June 24, 2005, or any superseding Council on Environmental Quality
guidance.
Sec. 46.120 Using existing environmental analyses prepared pursuant
to NEPA and the Council on Environmental Quality regulations.
(a) When available, the Responsible Official should use existing
NEPA analyses for assessing the impacts of a proposed action and any
alternatives. Procedures for adoption or incorporation by reference of
such analyses must be followed where applicable.
(b) If existing NEPA analyses include data and assumptions
appropriate for the analysis at hand, the Responsible Official should
use these existing NEPA analyses and/or their underlying data and
assumptions where feasible.
(c) An existing environmental analysis prepared pursuant to NEPA
and the Council on Environmental Quality regulations may be used in its
entirety if the Responsible Official determines, with appropriate
supporting documentation, that it adequately assesses the environmental
effects of the proposed action and reasonable alternatives. The
supporting record must include an evaluation of whether new
circumstances, new information or changes in the action or its impacts
not previously analyzed may result in significantly different
environmental effects.
(d) Responsible Officials should make the best use of existing NEPA
documents by supplementing, tiering to, incorporating by reference, or
adopting previous NEPA environmental analyses to avoid redundancy and
unnecessary paperwork.
Sec. 46.125 Incomplete or unavailable information.
In circumstances where the provisions of 40 CFR 1502.22 apply,
bureaus must consider all costs to obtain information. These costs
include monetary costs as well as other non-monetized costs when
appropriate, such as social costs, delays, opportunity costs, and non-
fulfillment or non-timely fulfillment of statutory mandates.
Sec. 46.130 Mitigation measures in analyses.
(a) Bureau proposed action. The analysis of the proposed action and
any alternatives must include an analysis of the effects of the
proposed action or alternative as well as analysis of the effects of
any appropriate mitigation measures or best management practices that
are considered. The mitigation measures can be analyzed either as
elements of alternatives or in a separate discussion of mitigation.
(b) Applicant proposals (i.e., bureau decision-making on such
proposals is the proposed action). An applicant's
[[Page 61317]]
proposal presented to the bureau for analysis must include any
ameliorative design elements (including stipulations, conditions, or
best management practices), required to make the proposal conform to
applicable legal requirements, as well as any voluntary ameliorative
design element(s). The effects of any mitigation measures other than
the ameliorative design elements included in the applicant's proposal
must also be analyzed. The analysis of these mitigation measures can be
structured as a matter of consideration of alternatives to approving
the applicant's proposal or as separate mitigation measures to be
imposed on any alternative selected for implementation.
Sec. 46.135 Incorporation of referenced documents into NEPA analysis.
(a) The Responsible Official must determine that the analysis and
assumptions used in the referenced document are appropriate for the
analysis at hand.
(b) Citations of specific information or analysis from other source
documents should include the pertinent page numbers or other relevant
identifying information.
(c) Publications incorporated into NEPA analysis by reference must
be listed in the bibliography. Such publications must be readily
available for review and, when not readily available, they must be made
available for review as part of the record supporting the proposed
action.
Sec. 46.140 Using tiered documents.
A NEPA document that tiers to another broader NEPA document in
accordance with 40 CFR 1508.28 must include a finding that the
conditions and environmental effects described in the broader NEPA
document are still valid or address any exceptions.
(a) Where the impacts of the narrower action are identified and
analyzed in the broader NEPA document, no further analysis is
necessary, and the previously prepared document can be used for
purposes of the pending action.
(b) To the extent that any relevant analysis in the broader NEPA
document is not sufficiently comprehensive or adequate to support
further decisions, the tiered NEPA document must explain this and
provide any necessary analysis.
(c) An environmental assessment prepared in support of an
individual proposed action can be tiered to a programmatic or other
broader-scope environmental impact statement. An environmental
assessment may be prepared, and a finding of no significant impact
reached, for a proposed action with significant effects, whether
direct, indirect, or cumulative, if the environmental assessment is
tiered to a broader environmental impact statement which fully analyzed
those significant effects. Tiering to the programmatic or broader-scope
environmental impact statement would allow the preparation of an
environmental assessment and a finding of no significant impact for the
individual proposed action, so long as any previously unanalyzed
effects are not significant. A finding of no significant impact other
than those already disclosed and analyzed in the environmental impact
statement to which the environmental assessment is tiered may also be
called a ``finding of no new significant impact.''
Sec. 46.145 Using adaptive management.
Bureaus should use adaptive management, as appropriate,
particularly in circumstances where long-term impacts may be uncertain
and future monitoring will be needed to make adjustments in subsequent
implementation decisions. The NEPA analysis conducted in the context of
an adaptive management approach should identify the range of management
options that may be taken in response to the results of monitoring and
should analyze the effects of such options. The environmental effects
of any adaptive management strategy must be evaluated in this or
subsequent NEPA analysis.
Sec. 46.150 Emergency responses.
This section applies only if the Responsible Official determines
that an emergency exists that makes it necessary to take urgently
needed actions before preparing a NEPA analysis and documentation in
accordance with the provisions in subparts D and E of this part.
(a) The Responsible Official may take those actions necessary to
control the immediate impacts of the emergency that are urgently needed
to mitigate harm to life, property, or important natural, cultural, or
historic resources. When taking such actions, the Responsible Official
shall take into account the probable environmental consequences of
these actions and mitigate foreseeable adverse environmental effects to
the extent practical.
(b) The Responsible Official shall document in writing the
determination that an emergency exists and describe the responsive
action(s) taken at the time the emergency exists. The form of that
documentation is within the discretion of the Responsible Official.
(c) If the Responsible Official determines that proposed actions
taken in response to an emergency, beyond actions noted in paragraph
(a) of this section, are not likely to have significant environmental
impacts, the Responsible Official shall document that determination in
an environmental assessment and a finding of no significant impact
prepared in accordance with this part, unless categorically excluded
(see subpart C of this part). If the Responsible Official finds that
the nature and scope of the subsequent actions related to the emergency
require taking such proposed actions prior to completing an
environmental assessment and a finding of no significant impact, the
Responsible Official shall consult with the Office of Environmental
Policy and Compliance about alternative arrangements for NEPA
compliance. The Assistant Secretary, Policy Management and Budget or
his/her designee may grant an alternative arrangement. Any alternative
arrangement must be documented. Consultation with the Department must
be coordinated through the appropriate bureau headquarters.
(d) The Department shall consult with CEQ about alternative
arrangements as soon as possible if the Responsible Official determines
that proposed actions, taken in response to an emergency, beyond
actions noted in paragraph (a) of this section, are likely to have
significant environmental impacts. The Responsible Official shall
consult with appropriate bureau headquarters and the Department, about
alternative arrangements as soon as the Responsible Official determines
that the proposed action is likely to have a significant environmental
effect. Such alternative arrangements will apply only to the proposed
actions necessary to control the immediate impacts of the emergency.
Other proposed actions remain subject to NEPA analysis and
documentation in accordance with this part.
Sec. 46.155 Consultation, coordination, and cooperation with other
agencies.
The Responsible Official must whenever possible consult,
coordinate, and cooperate with relevant State, local, and tribal
governments and other bureaus and Federal agencies concerning the
environmental effects of any Federal action within the jurisdictions or
related to the interests of these entities.
Sec. 46.160 Limitations on actions during the NEPA analysis process.
During the preparation of a program or plan NEPA document, the
Responsible Official may undertake any
[[Page 61318]]
major Federal action in accordance with 40 CFR 1506.1 when that action
is within the scope of, and analyzed in, an existing NEPA document
supporting the current plan or program, so long as there is adequate
NEPA documentation to support the individual action.
Sec. 46.170 Environmental effects abroad of major Federal actions.
(a) In order to facilitate informed decision-making, the
Responsible Official having ultimate responsibility for authorizing and
approving proposed actions encompassed by the provisions of Executive
Order (EO) 12114 shall follow the provisions and procedures of that EO.
EO 12114 ``represents the United States government's exclusive and
complete determination of the procedural and other actions to be taken
by Federal agencies to further the purpose of the National
Environmental Policy Act, with respect to the environment outside the
United States, its territories and possessions.''
(b) When implementing EO 12114, bureaus shall coordinate with the
Department. The Department shall then consult with the Department of
State, which shall coordinate all communications by the Department with
foreign governments concerning environmental agreements and other
arrangements in implementing EO 12114.
Subpart C--Initiating the NEPA Process
Sec. 46.200 Applying NEPA early.
(a) For any potentially major proposed Federal action (40 CFR
1508.23 and 1508.18) that may have potentially significant
environmental impacts, bureaus must coordinate, as early as feasible,
with:
(1) Any other bureaus or Federal agencies, State, local, and tribal
governments having jurisdiction by law or special expertise; and
(2) Appropriate Federal, State, local, and tribal governments
authorized to develop and enforce environmental standards or to manage
and protect natural resources or other aspects of the human
environment.
(b) Bureaus must solicit the participation of all those persons or
organizations that may be interested or affected as early as possible,
such as at the time an application is received or when the bureau
initiates the NEPA process for a proposed action.
(c) Bureaus should provide, where practicable, any appropriate
community-based training to reduce costs, prevent delays, and
facilitate and promote efficiency in the NEPA process.
(d) Bureaus should inform private or non-Federal applicants, to the
extent feasible, of:
(1) Any appropriate environmental information that the applicants
must include in their applications; and
(2) Any consultation with other Federal agencies, or State, local,
or tribal governments that the applicant must accomplish before or
during the application process.
(e) Bureaus must inform applicants as soon as practicable of any
responsibility they will bear for funding environmental analyses
associated with their proposals.
Sec. 46.205 Actions categorically excluded from further NEPA review.
Categorical Exclusion means a category or kind of action that has
no significant individual or cumulative effect on the quality of the
human environment. See 40 CFR 1508.4.
(a) Except as provided in paragraph (c) of this section, if an
action is covered by a Departmental categorical exclusion, the bureau
is not required to prepare an environmental assessment (see subpart D
of this part) or an environmental impact statement (see subpart E of
this part). If a proposed action does not meet the criteria for any of
the listed Departmental categorical exclusions or any of the individual
bureau categorical exclusions, then the proposed action must be
analyzed in an environmental assessment or environmental impact
statement.
(b) The actions listed in section 46.210 are categorically
excluded, Department-wide, from preparation of environmental
assessments or environmental impact statements.
(c) The CEQ Regulations at 40 CFR 1508.4 require agency procedures
to provide for extraordinary circumstances in which a normally excluded
action may have a significant environmental effect and require
additional analysis and action. Section 46.215 lists the extraordinary
circumstances under which actions otherwise covered by a categorical
exclusion require analyses under NEPA.
(1) Any action that is normally categorically excluded must be
evaluated to determine whether it meets any of the extraordinary
circumstances in section 46.215; if it does, further analysis and
environmental documents must be prepared for the action.
(2) Bureaus must work within existing administrative frameworks,
including any existing programmatic agreements, when deciding how to
apply any of the section 46.215 extraordinary circumstances.
(d) Congress may establish categorical exclusions by legislation,
in which case the terms of the legislation determine how to apply those
categorical exclusions.
Sec. 46.210 Listing of Departmental categorical exclusions.
The following actions are categorically excluded under paragraph
46.205(b), unless any of the extraordinary circumstances in section
46.215 apply:
(a) Personnel actions and investigations and personnel services
contracts.
(b) Internal organizational changes and facility and bureau
reductions and closings.
(c) Routine financial transactions including such things as
salaries and expenses, procurement contracts (e.g., in accordance with
applicable procedures and Executive Orders for sustainable or green
procurement), guarantees, financial assistance, income transfers,
audits, fees, bonds, and royalties.
(d) Departmental legal activities including, but not limited to,
such things as arrests, investigations, patents, claims, and legal
opinions. This does not include bringing judicial or administrative
civil or criminal enforcement actions which are outside the scope of
NEPA in accordance with 40 CFR 1508.18(a).
(e) Nondestructive data collection, inventory (including field,
aerial, and satellite surveying and mapping), study, research, and
monitoring activities.
(f) Routine and continuing government business, including such
things as supervision, administration, operations, maintenance,
renovations, and replacement activities having limited context and
intensity (e.g., limited size and magnitude or short-term effects).
(g) Management, formulation, allocation, transfer, and
reprogramming of the Department's budget at all levels. (This does not
exclude the preparation of environmental documents for proposals
included in the budget when otherwise required.)
(h) Legislative proposals of an administrative or technical nature
(including such things as changes in authorizations for appropriations
and minor boundary changes and land title transactions) or having
primarily economic, social, individual, or institutional effects; and
comments and reports on referrals of legislative proposals.
(i) Policies, directives, regulations, and guidelines: that are of
an administrative, financial, legal,
[[Page 61319]]
technical, or procedural nature; or whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis and will later be subject to the NEPA process, either
collectively or case-by-case.
(j) Activities which are educational, informational, advisory, or
consultative to other agencies, public and private entities, visitors,
individuals, or the general public.
(k) Hazardous fuels reduction activities using prescribed fire not
to exceed 4,500 acres, and mechanical methods for crushing, piling,
thinning, pruning, cutting, chipping, mulching, and mowing, not to
exceed 1,000 acres. Such activities:
(1) Shall be limited to areas--
(i) In wildland-urban interface; and
(ii) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface;
(2) Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire
Risks to Communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan;''
(3) Shall be conducted consistent with bureau and Departmental
procedures and applicable land and resource management plans;
(4) Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
and
(5) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction. (Refer to
the ESM Series for additional, required guidance.)
(l) Post-fire rehabilitation activities not to exceed 4,200 acres
(such as tree planting, fence replacement, habitat restoration,
heritage site restoration, repair of roads and trails, and repair of
damage to minor facilities such as campgrounds) to repair or improve
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities damaged
by fire. Such activities must comply with the following (Refer to the
ESM Series for additional, required guidance.):
(1) Shall be conducted consistent with bureau and Departmental
procedures and applicable land and resource management plans;
(2) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(3) Shall be completed within three years following a wildland
fire.
Sec. 46.215 Categorical Exclusions: Extraordinary circumstances.
Extraordinary circumstances (see paragraph 46.205(c)) exist for
individual actions within categorical exclusions that may meet any of
the criteria listed in paragraphs (a) through (l) of this section.
Applicability of extraordinary circumstances to categorical exclusions
is determined by the Responsible Official.
(a) Have significant impacts on public health or safety.
(b) Have significant impacts on such natural resources and unique
geographic characteristics as historic or cultural resources; park,
recreation or refuge lands; wilderness areas; wild or scenic rivers;
national natural landmarks; sole or principal drinking water aquifers;
prime farmlands; wetlands (EO 11990); floodplains (EO 11988); national
monuments; migratory birds; and other ecologically significant or
critical areas.
(c) Have highly controversial environmental effects or involve
unresolved conflicts concerning alternative uses of available resources
[NEPA section 102(2)(E)].
(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) Have a direct relationship to other actions with individually
insignificant but cumulatively significant environmental effects.
(g) Have significant impacts on properties listed, or eligible for
listing, on the National Register of Historic Places as determined by
the bureau.
(h) Have significant impacts on species listed, or proposed to be
listed, on the List of Endangered or Threatened Species or have
significant impacts on designated Critical Habitat for these species.
(i) Violate a Federal law, or a State, local, or tribal law or
requirement imposed for the protection of the environment.
(j) Have a disproportionately high and adverse effect on low income
or minority populations (EO 12898).
(k) Limit access to and ceremonial use of Indian sacred sites on
Federal lands by Indian religious practitioners or significantly
adversely affect the physical integrity of such sacred sites (EO
13007).
(l) Contribute to the introduction, continued existence, or spread
of noxious weeds or non-native invasive species known to occur in the
area or actions that may promote the introduction, growth, or expansion
of the range of such species (Federal Noxious Weed Control Act and EO
13112).
Sec. 46.220 How to designate lead agencies.
(a) In most cases, the Responsible Official should designate one
Federal agency as the lead with the remaining Federal, State, tribal
governments, and local agencies assuming the role of cooperating
agency. In this manner, the other Federal, State, and local agencies
can work to ensure that the NEPA document will meet their needs for
adoption and application to their related decision(s).
(b) In some cases, a non-Federal agency (including a tribal
government) must comply with State or local requirements that are
comparable to the NEPA requirements. In these cases, the Responsible
Official may designate the non-Federal agency as a joint lead agency.
(See 40 CFR 1501.5 and 1506.2 for a description of the selection of
lead agencies, the settlement of lead agency disputes, and the use of
joint lead agencies.)
(c) In some cases, the Responsible Official may establish a joint
lead relationship among several Federal agencies. If there is a joint
lead, then one Federal agency must be identified as the agency
responsible for filing the environmental impact statement with EPA.
Sec. 46.225 How to select cooperating agencies.
(a) An ``eligible governmental entity'' is:
(1) Any Federal agency that is qualified to participate in the
development of an environmental impact statement as provided for in 40
CFR 1501.6 and 1508.5 by virtue of its jurisdiction by law, as defined
in 40 CFR 1508.15;
(2) Any Federal agency that is qualified to participate in the
development of an environmental impact statement by virtue of its
special expertise, as defined in 40 CFR 1508.26; or
(3) Any non-Federal agency (State, tribal, or local) with
qualifications similar to those in paragraphs (a)(1) and (a)(2) of this
section.
(b) Except as described in paragraph (c) of this section, the
Responsible Official for the lead bureau must invite eligible
governmental entities to participate as cooperating agencies
[[Page 61320]]
when the bureau is developing an environmental impact statement.
(c) The Responsible Official for the lead bureau must consider any
request by an eligible governmental entity to participate in a
particular environmental impact statement as a cooperating agency. If
the Responsible Official for the lead bureau denies a request, or
determines it is inappropriate to extend an invitation, he or she must
state the reasons in the environmental impact statement. Denial of a
request or not extending an invitation for cooperating agency status is
not subject to any internal administrative appeals process, nor is it a
final agency action subject to review under the Administrative
Procedure Act, 5 U.S.C. 701 et seq.
(d) Bureaus should work with cooperating agencies to develop and
adopt a memorandum of understanding that includes their respective
roles, assignment of issues, schedules, and staff commitments so that
the NEPA process remains on track and within the time schedule.
Memoranda of understanding must be used in the case of non-Federal
agencies and must include a commitment to maintain the confidentiality
of documents and deliberations during the period prior to the public
release by the bureau of any NEPA document, including drafts.
(e) The procedures of this section may be used for an environmental
assessment.
Sec. 46.230 Role of cooperating agencies in the NEPA process.
In accordance with 40 CFR 1501.6, throughout the development of an
environmental document, the lead bureau will collaborate, to the
fullest extent possible, with all cooperating agencies concerning those
issues relating to their jurisdiction and special expertise.
Cooperating agencies may, by agreement with the lead bureau, help to do
the following:
(a) Identify issues to be addressed;
(b) Arrange for the collection and/or assembly of necessary
resource, environmental, social, economic, and institutional data;
(c) Analyze data;
(d) Develop alternatives;
(e) Evaluate alternatives and estimate the effects of implementing
each alternative; and
(f) Carry out any other task necessary for the development of the
environmental analysis and documentation.
Sec. 46.235 NEPA scoping process.
(a) Scoping is a process that continues throughout the planning and
early stages of preparation of an environmental impact statement.
Scoping is required for an environmental impact statement; scoping may
be helpful during preparation of an environmental assessment, but is
not required (see paragraph 46.305(a) Public involvement in the
environmental assessment process). For an environmental impact
statement, bureaus must use scoping to engage State, local and tribal
governments and the public in the early identification of concerns,
potential impacts, relevant effects of past actions and possible
alternative actions. Scoping is an opportunity to introduce and explain
the interdisciplinary approach and solicit information as to additional
disciplines that should be included. Scoping also provides an
opportunity to bring agencies and applicants together to lay the
groundwork for setting time limits, expediting reviews where possible,
integrating other environmental reviews, and identifying any major
obstacles that could delay the process. The Responsible Official shall
determine whether, in some cases, the invitation requirement in 40 CFR
1501.7(a)(1) may be satisfied by including such an invitation in the
notice of intent (NOI).
(b) In scoping meetings, newsletters, or by other communication
methods appropriate to scoping, the lead agency must make it clear that
the lead agency is ultimately responsible for determining the scope of
an environmental impact statement and that suggestions obtained during
scoping are only options for the bureau to consider.
Sec. 46.240 Establishing time limits for the NEPA process.
(a) For each proposed action, on a case-by-case basis, bureaus
shall:
(1) Set time limits from the start to the finish of the NEPA
analysis and documentation, consistent with the requirements of 40 CFR
1501.8 and other legal obligations, including statutory and regulatory
timeframes;
(2) Consult with cooperating agencies in setting time limits; and
(3) Encourage cooperating agencies to meet established time frames.
(b) Time limits should reflect the availability of Department and
bureau personnel and funds. Efficiency of the NEPA process is dependent
on the management capabilities of the lead bureau, which must assemble
an interdisciplinary team and/or qualified staff appropriate to the
type of project to be analyzed to ensure timely completion of NEPA
documents.
Subpart D--Environmental Assessments
Sec. 46.300 Purpose of an environmental assessment and when it must
be prepared.
The purpose of an environmental assessment is to allow the
Responsible Official to determine whether to prepare an environmental
impact statement or a finding of no significant impact.
(a) A bureau must ensure that an environmental assessment is
prepared for all proposed Federal actions, except those:
(1) That are covered by a categorical exclusion;
(2) That are covered sufficiently by an earlier environmental
document as determined and documented by the Responsible Official; or
(3) For which the bureau has already decided to prepare an
environmental impact statement.
(b) A bureau may prepare an environmental assessment for any
proposed action at any time to:
(1) Assist in planning and decision-making;
(2) Further the purposes of NEPA when no environmental impact
statement is necessary; or
(3) Facilitate environmental impact statement preparation.
Sec. 46.305 Public involvement in the environmental assessment
process.
(a) The bureau must, to the extent practicable, provide for public
notification and public involvement when an environmental assessment is
being prepared. However, the methods for providing public notification
and opportunities for public involvement are at the discretion of the
Responsible Official.
(1) The bureau must consider comments that are timely received,
whether specifically solicited or not.
(2) Although scoping is not required, the bureau may apply a
scoping process to an environmental assessment.
(b) Publication of a ``draft'' environmental assessment is not
required. Bureaus may seek comments on an environmental assessment if
they determine it to be appropriate, such as when the level of public
interest or the uncertainty of effects warrants, and may revise
environmental assessments based on comments received without need of
initiating another comment period.
(c) The bureau must notify the public of the availability of an
environmental assessment and any associated finding of no significant
impact once they have been completed. Comments on a finding of no
significant impact do not need to be solicited, except as required by
40 CFR 1501.4(e)(2).
[[Page 61321]]
(d) Bureaus may allow cooperating agencies (as defined in Sec.
46.225) to participate in developing environmental assessments.
Sec. 46.310 Contents of an environmental assessment.
(a) At a minimum, an environmental assessment must include brief
discussions of:
(1) The proposal;
(2) The need for the proposal;
(3) The environmental impacts of the proposed action;
(4) The environmental impacts of the alternatives considered; and
(5) A list of agencies and persons consulted.
(b) When the Responsible Official determines that there are no
unresolved conflicts about the proposed action with respect to
alternative uses of available resources, the environmental assessment
need only consider the proposed action and does not need to consider
additional alternatives, including the no action alternative. (See
section 102(2)(E) of NEPA).
(c) In addition, an environmental assessment may describe a broader
range of alternatives to facilitate planning and decision-making.
(d) A proposed action or alternative(s) may include adaptive
management strategies allowing for adjustment of the action during
implementation. If the adjustments to an action are clearly articulated
and pre-specified in the description of the alternative and fully
analyzed, then the action may be adjusted during implementation without
the need for further analysis. Adaptive management includes a
monitoring component, approved adaptive actions that may be taken, and
environmental effects analysis for the adaptive actions approved.
(e) The level of detail and depth of impact analysis should
normally be limited to the minimum needed to determine whether there
would be significant environmental effects.
(f) Bureaus may choose to provide additional detail and depth of
analysis as appropriate in those environmental assessments prepared
under paragraph 46.300(b).
(g) An environmental assessment must contain objective analyses
that support conclusions concerning environmental impacts.
Sec. 46.315 How to format an environmental assessment.
(a) An environmental assessment may be prepared in any format
useful to facilitate planning, decision-making, and appropriate public
participation.
(b) An environmental assessment may be accompanied by any other
planning or decision-making document. The portion of the document that
analyzes the environmental impacts of the proposal and alternatives
must be clearly and separately identified and not spread throughout or
interwoven into other sections of the document.
Sec. 46.320 Adopting environmental assessments prepared by another
agency, entity, or person.
(a) A Responsible Official may adopt an environmental assessment
prepared by another agency, entity, or person, including an applicant,
if the Responsible Official:
(1) Independently reviews the environmental assessment; and
(2) Finds that the environmental assessment complies with this
subpart and relevant provisions of the CEQ Regulations and with other
program requirements.
(b) When appropriate, the Responsible Official may augment the
environmental assessment to be consistent with the bureau's proposed
action.
(c) In adopting or augmenting the environmental assessment, the
Responsible Official will cite the original environmental assessment.
(d) The Responsible Official must ensure that its bureau's public
involvement requirements have been met before it adopts another
agency's environmental assessment.
Sec. 46.325 Conclusion of the environmental assessment process.
Upon review of the environmental assessment by the Responsible
Official, the environmental assessment process concludes with one of
the following:
(1) A notice of intent to prepare an environmental impact
statement;
(2) A finding of no significant impact; or
(3) A result that no further action is taken on the proposal.
Subpart E--Environmental Impact Statements
Sec. 46.400 Timing of environmental impact statement development.
The bureau must prepare an environmental impact statement for each
proposed major Federal action significantly affecting the quality of
the human environment before making a decision on whether to proceed
with the proposed action.
Sec. 46.405 Remaining within page limits.
To the extent possible, bureaus should use techniques such as
incorporation of referenced documents into NEPA analysis (46.135) and
tiering (46.140) in an effort to remain within the normal page limits
stated in 40 CFR 1502.7.
Sec. 46.415 Environmental impact statement content, alternatives,
circulation and filing requirements.
The Responsible Official may use any environmental impact statement
format and design as long as the statement is in accordance with 40 CFR
1502.10.
(a) Contents. The environmental impact statement shall disclose:
(1) A statement of the purpose and need for the action;
(2) A description of the proposed action;
(3) The environmental impact of the proposed action;
(4) A brief description of the affected environment;
(5) Any adverse environmental effects which cannot be avoided
should the proposal be implemented;
(6) Alternatives to the proposed action;
(7) The relationship between local short-term uses of the human
environment and the maintenance and enhancement of long-term
productivity;
(8) Any irreversible or irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented; and
(9) The process used to coordinate with other Federal agencies,
State, tribal and local governments, and persons or organizations who
may be interested or affected, and the results thereof.
(b) Alternatives. The environmental impact statement shall document
the examination of the range of alternatives (paragraph 46.420(c)). The
range of alternatives includes those reasonable alternatives (paragraph
46.420(b)) that meet the purpose and need of the proposed action, and
address one or more significant issues (40 CFR 1501.7(a)(2-3)) related
to the proposed action. Since an alternative may be developed to
address more than one significant issue, no specific number of
alternatives is required or prescribed. In addition to the requirements
in 40 CFR 1502.14, the Responsible Official has an option to use the
following procedures to develop and analyze alternatives.
(1) The analysis of the effects of the no-action alternative may be
documented by contrasting the current condition and expected future
condition should the proposed action not be undertaken with the impacts
of the proposed action and any reasonable alternatives.
(2) The Responsible Official may collaborate with those persons or
organization that may be interested or affected to modify a proposed
action and alternative(s) under consideration prior to issuing a draft
environmental impact statement. In such cases the Responsible Official
may consider these
[[Page 61322]]
modifications as alternatives considered. Before engaging in any
collaborative processes, the Responsible Official must consider the
Federal Advisory Committee Act (FACA) implications of such processes.
(3) A proposed action or alternative(s) may include adaptive
management strategies allowing for adjustment of the action during
implementation. If the adjustments to an action are clearly articulated
and pre-specified in the description of the alternative and fully
analyzed, then the action may be adjusted during implementation without
the need for further analysis. Adaptive management includes a
monitoring component, approved adaptive actions that may be taken, and
environmental effects analysis for the adaptive actions approved.
(c) Circulating and filing draft and final environmental impact
statements. (1) The draft and final environmental impact statements
shall be filed with the Environmental Protection Agency's Office of
Federal Activities in Washington, DC (40 CFR 1506.9).
(2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR
1506.10 ``Timing of agency action,'' 40 CFR 1502.9 ``Draft, final, and
supplemental statements,'' and 40 CFR 1502.19 ``Circulation of the
environmental impact statement'' shall only apply to draft, final, and
supplemental environmental impact statements that are filed with EPA.
Sec. 46.420 Terms used in an environmental impact statement.
The following terms are commonly used to describe concepts or
activities in an environmental impact statement:
(a) Statement of purpose and need. In accordance with 40 CFR
1502.13, the statement of purpose and need briefly indicates the
underlying purpose and need to which the bureau is responding.
(1) In some instances it may be appropriate for the bureau to
describe its ``purpose'' and its ``need'' as distinct aspects. The
``need'' for the action may be described as the underlying problem or
opportunity to which the agency is responding with the action. The
``purpose'' may refer to the goal or objective that the bureau is
trying to achieve, and should be stated to the extent possible, in
terms of desired outcomes.
(2) When a bureau is asked to approve an application or permit, the
bureau should consider the needs and goals of the parties involved in
the application or permit as well as the public interest. The needs and
goals of the parties involved in the application or permit may be
described as background information. However, this description must not
be confused with the bureau's purpose and need for action. It is the
bureau's purpose and need for action that will determine the range of
alternatives and provide a basis for the selection of an alternative in
a decision.
(b) Reasonable alternatives. In addition to the requirements of 40
CFR 1502.14, this term includes alternatives that are technically and
economically practical or feasible and meet the purpose and need of the
proposed action.
(c) Range of alternatives. This term includes all reasonable
alternatives, or when there are potentially a very large number of
alternatives then a reasonable number of examples covering the full
spectrum of reasonable alternatives, each of which must be rigorously
explored and objectively evaluated, as well as those other alternatives
that are eliminated from detailed study with a brief discussion of the
reasons for eliminating them. 40 CFR 1502.14. The Responsible Official
must not consider alternatives beyond the range of alternatives
discussed in the relevant environmental documents, but may select
elements from several alternatives discussed. Moreover, the Responsible
Official must, in fact, consider all the alternatives discussed in an
environmental impact statement. 40 CFR 1505.1 (e).
(d) Preferred alternative. This term refers to the alternative
which the bureau believes would best accomplish the purpose and need of
the proposed action while fulfilling its statutory mission and
responsibilities, giving consideration to economic, environmental,
technical, and other factors. It may or may not be the same as the
bureau's proposed action, the non-Federal entity's proposal or the
environmentally preferable alternative.
Sec. 46.425 Identification of the preferred alternative in an
environmental impact statement.
(a) Unless another law prohibits the expression of a preference,
the draft environmental impact statement should identify the bureau's
preferred alternative or alternatives, if one or more exists.
(b) Unless another law prohibits the expression of a preference,
the final environmental impact statement must identify the bureau's
preferred alternative.
Sec. 46.430 Environmental review and consultation requirements.
(a) Any environmental impact statement that also addresses other
environmental review and consultation requirements must clearly
identify and discuss all the associated analyses, studies, or surveys
relied upon by the bureau as a part of that review and consultation.
The environmental impact statement must include these associated
analyses, studies, or surveys, either in the text or in an appendix or
indicate where such analysis, studies or surveys may be readily
accessed by the public.
(b) The draft environmental impact statement must list all Federal
permits, licenses, or approvals that must be obtained to implement the
proposal. The environmental analyses for these related permits,
licenses, and approvals should be integrated and performed
concurrently. The bureau, however, need not unreasonably delay its NEPA
analysis in order to integrate another agency's analyses. The bureau
may complete the NEPA analysis before all approvals by other agencies
are in place.
Sec. 46.435 Inviting comments.
(a) A bureau must seek comment from the public as part of the
Notice of Intent to prepare an environmental impact statement and
notice of availability for a draft environmental impact statement;
(b) In addition to paragraph (a) of this section, a bureau must
request comments from:
(1) Federal agencies;
(2) State agencies through procedures established by the Governor
of such state under EO 12372;
(3) Local governments and agencies, to the extent that the proposed
action affects their jurisdictions; and
(4) The applicant, if any, and persons or organizations who may be
interested or affected.
(c) The bureau must request comments from the tribal governments,
unless the tribal governments have designated an alternate review
process, when the proposed action may affect the environment of either:
(1) Indian trust or restricted land; or
(2) Other Indian trust resources, trust assets, or tribal health
and safety.
(d) A bureau does not need to delay preparation and issuance of a
final environmental impact statement when any Federal, State, and local
agencies, or tribal governments from which comments must be obtained or
requested do not comment within the prescribed time period.
Sec. 46.440 Eliminating duplication with State and local procedures.
A bureau must incorporate in its directives provisions allowing a
State agency to jointly prepare an environmental impact statement, to
the extent provided in 40 CFR 1506.2.
[[Page 61323]]
Sec. 46.445 Preparing a legislative environmental impact statement.
When required under 40 CFR 1506.8, the Department must ensure that
a legislative environmental impact statement is included as a part of
the formal transmittal of a legislative proposal to the Congress.
Sec. 46.450 Identifying the environmentally preferable
alternative(s).
In accordance with the requirements of 40 CFR 1505.2, a bureau must
identify the environmentally preferable alternative(s) in the record of
decision. It is not necessary that the environmentally preferable
alternative(s) be selected in the record of decision.
[FR Doc. E8-23474 Filed 10-14-08; 8:45 am]
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