National Environmental Policy Act (NEPA)
NEPA establishes the requirement that all federal agencies funding or permitting projects make those decisions in full consideration of the impact to the natural and human environments. It further requires agencies to make these impacts known to interested parties and the general public. The central element in the environmental review process is a rigorous evaluation of alternatives including the "no action" alternative.
The National Environmental Policy Act (commonly referred to as NEPA) was signed into law on January 1, 1970. Basically, NEPA established Federal policy, goals and procedures for the protection, maintenance and enhancement of the U.S. environment. It requires the EPA and other Federal agencies to: take environmental factors into account when making certain decisions, such as EPA's decision to issue or deny a new source National Pollutant Discharge Elimination System (NPDES)permit make a clear and reasonably complete record of how the environmental factors were considered in the decision-making process.
NEPA also established the U.S. Council on Environmental Quality (commonly referred to as CEQ), who in turn developed regulations for implementing the law. The principle objective of NEPA and the CEQ regulations is for Federal agencies (and those regulated by Federal Agencies) to design, locate and operate their projects in ways which reduce adverse environmental impacts, and which increase the beneficial impacts.
Applicants for National Pollutant Discharge Elimination System (NPDES) permits covering new or expanded industrial project construction must submit information on the proposed construction. The information must describe the proposed or expanded process and its relationship to the existing facilities. The EPA will use the information to determine if new source performance standards (NSPS) apply to the new construction. The New Source Determination (NSD) establishes whether or not the proposed construction is subject to environmental assessment under the National Environmental Policy Act of 1969, as amended (NEPA). These regulations and definitions are found in Sections 306 and 511(c) of the Clean Water Act and 40 CFR Parts 6, 122.2, and 122.29.
EPA's NEPA implementing regulations establish the categories of projects that are subject to NEPA compliance. Specifically, EPA requires NEPA compliance for the following areas:
(1) Wastewater Treatment Construction Grants Program (Although phased out, these regulations are used as guidance for "special appropriation grants,"
(2) New Source National Pollutant Discharge Elimination System Program (NPDES),
(3) Office of Research and Development Projects,
(4) Solid Waste Demonstration Projects,
(5) EPA Facility Support Activities
(6) Assessing the Environmental Effects Abroad of EPA Actions; and
(7) Special Appropriation Act Fund Projects
National Environmental Policy Act
The National Environmental Policy Act of 1969, as amended
(Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83,
August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982)
An Act to establish a national policy for the environment, to provide for the establishment of a Council on Environmental
Quality, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That
this Act may be cited as the "National Environmental Policy Act of 1969."
Sec. 2 [42 USC § 4321]. The purposes of this Act are: To declare a national policy which will encourage productive and
enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems
and natural resources important to the Nation; and to establish a Council on Environmental Quality.
CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
Sec. 101 [42 USC § 4331].
(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural
environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource
exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and
maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the
Federal Government, in cooperation with State and local governments, and other concerned public and private organizations,
to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony,
and fulfill the social, economic, and other requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all
practicable means, consist with other essential considerations of national policy, to improve and coordinate Federal plans,
functions, programs, and resources to the end that the Nation may --
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other
undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an
environment which supports diversity, and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
Sec. 102 [42 USC § 4332]. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies,
regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth
in this Act, and (2) all agencies of the Federal Government shall --
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate
consideration in decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed statement by the responsible official on --
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any
Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to
develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality
and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the
existing agency review processes;
(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under
a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:
(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,
(ii) the responsible Federal official furnishes guidance and participates in such preparation,
(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and
(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other
State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon
such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written
assessment of such impacts and views for incorporation into such detailed statement.
The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and
content of the entire statement or of any other responsibility under this Act; and further, this subparagraph does not affect the
legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.
(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources;
(F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy
of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international
cooperation in anticipating and preventing a decline in the quality of mankind's world environment;
(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring,
maintaining, and enhancing the quality of the environment;
(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and
(I) assist the Council on Environmental Quality established by title II of this Act.
Sec. 103 [42 USC § 4333]. All agencies of the Federal Government shall review their present statutory authority,
administrative regulations, and current policies and procedures for the purpose of determining whether there are any
deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall
propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies
into conformity with the intent, purposes, and procedures set forth in this Act.
Sec. 104 [42 USC § 4334]. Nothing in section 102 [42 USC § 4332] or 103 [42 USC § 4333] shall in any way affect the
specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to
coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the
recommendations or certification of any other Federal or State agency.
Sec. 105 [42 USC § 4335]. The policies and goals set forth in this Act are supplementary to those set forth in existing
authorizations of Federal agencies.
COUNCIL ON ENVIRONMENTAL QUALITY
Sec. 201 [42 USC § 4341]. The President shall transmit to the Congress annually beginning July 1, 1970, an Environmental
Quality Report (hereinafter referred to as the "report") which shall set forth (1) the status and condition of the major natural,
manmade, or altered environmental classes of the Nation, including, but not limited to, the air, the aquatic, including marine,
estuarine, and fresh water, and the terrestrial environment, including, but not limited to, the forest, dryland, wetland, range,
urban, suburban an rural environment; (2) current and foreseeable trends in the quality, management and utilization of such
environments and the effects of those trends on the social, economic, and other requirements of the Nation; (3) the adequacy of available natural resources for fulfilling human and economic requirements of the Nation in the light of expected population
pressures; (4) a review of the programs and activities (including regulatory activities) of the Federal Government, the State and local governments, and nongovernmental entities or individuals with particular reference to their effect on the environment and on the conservation, development and utilization of natural resources; and (5) a program for remedying the deficiencies of existing programs and activities, together with recommendations for legislation.
Sec. 202 [42 USC § 4342]. There is created in the Executive Office of the President a Council on Environmental Quality
(hereinafter referred to as the "Council"). The Council shall be composed of three members who shall be appointed by the
President to serve at his pleasure, by and with the advice and consent of the Senate. The President shall designate one of the
members of the Council to serve as Chairman. Each member shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds; to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific, economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommend national policies to promote the improvement of the quality of the environment.
Sec. 203 [42 USC § 4343].
(a) The Council may employ such officers and employees as may be necessary to carry out its functions under this Act. In
addition, the Council may employ and fix the compensation of such experts and consultants as may be necessary for the
carrying out of its functions under this Act, in accordance with section 3109 of title 5, United States Code (but without regard
to the last sentence thereof).
(b) Notwithstanding section 1342 of Title 31, the Council may accept and employ voluntary and uncompensated services in
furtherance of the purposes of the Council.
Sec. 204 [42 USC § 4344]. It shall be the duty and function of the Council --
(1) to assist and advise the President in the preparation of the Environmental Quality Report required by section 201 [42 USC
§ 4341] of this title;
(2) to gather timely and authoritative information concerning the conditions and trends in the quality of the environment both
current and prospective, to analyze and interpret such information for the purpose of determining whether such conditions and trends are interfering, or are likely to interfere, with the achievement of the policy set forth in title I of this Act, and to compile and submit to the President studies relating to such conditions and trends;
(3) to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in
title I of this Act for the purpose of determining the extent to which such programs and activities are contributing to the
achievement of such policy, and to make recommendations to the President with respect thereto;
(4) to develop and recommend to the President national policies to foster and promote the improvement of environmental
quality to meet the conservation, social, economic, health, and other requirements and goals of the Nation;
(5) to conduct investigations, studies, surveys, research, and analyses relating to ecological systems and environmental quality;
(6) to document and define changes in the natural environment, including the plant and animal systems, and to accumulate
necessary data and other information for a continuing analysis of these changes or trends and an interpretation of their
(7) to report at least once each year to the President on the state and condition of the environment; and
(8) to make and furnish such studies, reports thereon, and recommendations with respect to matters of policy and legislation as the President may request.
Sec. 205 [42 USC § 4345]. In exercising its powers, functions, and duties under this Act, the Council shall --
(1) consult with the Citizens' Advisory Committee on Environmental Quality established by Executive Order No. 11472, dated
May 29, 1969, and with such representatives of science, industry, agriculture, labor, conservation organizations, State and local governments and other groups, as it deems advisable; and
(2) utilize, to the fullest extent possible, the services, facilities and information (including statistical information) of public and
private agencies and organizations, and individuals, in order that duplication of effort and expense may be avoided, thus
assuring that the Council's activities will not unnecessarily overlap or conflict with similar activities authorized by law and
performed by established agencies.
Sec. 206 [42 USC § 4346]. Members of the Council shall serve full time and the Chairman of the Council shall be
compensated at the rate provided for Level II of the Executive Schedule Pay Rates [5 USC § 5313]. The other members of
the Council shall be compensated at the rate provided for Level IV of the Executive Schedule Pay Rates [5 USC § 5315].
Sec. 207 [42 USC § 4346a]. The Council may accept reimbursements from any private nonprofit organization or from any
department, agency, or instrumentality of the Federal Government, any State, or local government, for the reasonable travel
expenses incurred by an officer or employee of the Council in connection with his attendance at any conference, seminar, or
similar meeting conducted for the benefit of the Council.
Sec. 208 [42 USC § 4346b]. The Council may make expenditures in support of its international activities, including
expenditures for: (1) international travel; (2) activities in implementation of international agreements; and (3) the support of
international exchange programs in the United States and in foreign countries.
Sec. 209 [42 USC § 4347]. There are authorized to be appropriated to carry out the provisions of this chapter not to exceed
$300,000 for fiscal year 1970, $700,000 for fiscal year 1971, and $1,000,000 for each fiscal year thereafter.
The Environmental Quality Improvement Act, as amended (Pub. L. No. 91- 224, Title II, April 3, 1970; Pub. L. No.
97-258, September 13, 1982; and Pub. L. No. 98-581, October 30, 1984.
42 USC § 4372.
(a) There is established in the Executive Office of the President an office to be known as the Office of Environmental Quality
(hereafter in this chapter referred to as the "Office"). The Chairman of the Council on Environmental Quality established by
Public Law 91-190 shall be the Director of the Office. There shall be in the Office a Deputy Director who shall be appointed
by the President, by and with the advice and consent of the Senate.
(b) The compensation of the Deputy Director shall be fixed by the President at a rate not in excess of the annual rate of
compensation payable to the Deputy Director of the Office of Management and Budget.
(c) The Director is authorized to employ such officers and employees (including experts and consultants) as may be necessary to enable the Office to carry out its functions ;under this chapter and Public Law 91-190, except that he may employ no more than ten specialists and other experts without regard to the provisions of Title 5, governing appointments in the competitive service, and pay such specialists and experts without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, but no such specialist or expert shall be paid at a rate in excess of the maximum rate for GS-18 of the General Schedule under section 5332 of Title 5.
(d) In carrying out his functions the Director shall assist and advise the President on policies and programs of the Federal
Government affecting environmental quality by --
(1) providing the professional and administrative staff and support for the Council on Environmental Quality established by
Public Law 91- 190;
(2) assisting the Federal agencies and departments in appraising the effectiveness of existing and proposed facilities, programs, policies, and activities of the Federal Government, and those specific major projects designated by the President which do not require individual project authorization by Congress, which affect environmental quality;
(3) reviewing the adequacy of existing systems for monitoring and predicting environmental changes in order to achieve effective coverage and efficient use of research facilities and other resources;
(4) promoting the advancement of scientific knowledge of the effects of actions and technology on the environment and
encouraging the development of the means to prevent or reduce adverse effects that endanger the health and well-being of man;
(5) assisting in coordinating among the Federal departments and agencies those programs and activities which affect, protect, and improve environmental quality;
(6) assisting the Federal departments and agencies in the development and interrelationship of environmental quality criteria and standards established throughout the Federal Government;
(7) collecting, collating, analyzing, and interpreting data and information on environmental quality, ecological research, and
(e) The Director is authorized to contract with public or private agencies, institutions, and organizations and with individuals
without regard to section 3324(a) and (b) of Title 31 and section 5 of Title 41 in carrying out his functions.
42 USC § 4373. Each Environmental Quality Report required by Public Law 91-190 shall, upon transmittal to Congress, be
referred to each standing committee having jurisdiction over any part of the subject matter of the Report.
42 USC § 4374. There are hereby authorized to be appropriated for the operations of the Office of Environmental Quality and
the Council on Environmental Quality not to exceed the following sums for the following fiscal years which sums are in addition to those contained in Public Law 91- 190:
(a) $2,126,000 for the fiscal year ending September 30, 1979.
(b) $3,000,000 for the fiscal years ending September 30, 1980, and September 30, 1981.
(c) $44,000 for the fiscal years ending September 30, 1982, 1983, and 1984.
(d) $480,000 for each of the fiscal years ending September 30, 1985 and 1986.
42 USC § 4375.
(a) There is established an Office of Environmental Quality Management Fund (hereinafter referred to as the "Fund") to receive advance payments from other agencies or accounts that may be used solely to finance --
(1) study contracts that are jointly sponsored by the Office and one or more other Federal agencies; and
(2) Federal interagency environmental projects (including task forces) in which the Office participates.
(b) Any study contract or project that is to be financed under subsection (a) of this section may be initiated only with the
approval of the Director.
(c) The Director shall promulgate regulations setting forth policies and procedures for operation of the Fund.
40 CFR PART 6- EPA'S NEPA IMPLEMENTING REGULATIONS
40 CODE OF FEDERAL REGULATIONS PART 6—PROCEDURES FOR IMPLEMENTING THE REQUIREMENTS OF THE COUNCIL ON ENVIRONMENTAL QUALITY ON THE NATIONAL ENVIRONMENTAL POLICY ACT –ENVIRONMENTAL PROTECTION AGENCY
Sec. 6. Purpose and policy.
(a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., as implemented by Executive Orders 11514 and 11991 and the Council on Environmental Quality (CEQ) Regulations of November 29, 1978 (43 FR 55978) requires that Federal agencies include in their decision-making processes appropriate and careful consideration of all environmental effects of proposed actions, analyze potential environmental effects of proposed actions and their alternatives for public understanding and scrutiny, avoid or minimize adverse effects of proposed actions, and restore and enhance environmental quality as much as possible. The Environmental Protection Agency (EPA) shall integrate these NEPA factors as early in the Agency planning processes as possible. The environmental review process shall be the focal point to assure NEPA considerations are taken into account. To the extent applicable, EPA shall prepare environmental impact statements (EISs) on those major actions determined to have significant impact on the quality of the human environment. This part takes into account the EIS exemptions set forth under section 511(c)(1) of the Clean Water Act (Pub. L. 92-500) and section 7(c)(1) of the Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319).
(b) This part establishes EPA policy and procedures for the identification and analysis of the environmental impacts of EPA-related activities and the preparation and processing of EISs.
Sec. 6. Definitions.
(a) Terminology. All terminology used in this part will be consistent with the terms as defined in 40 CFR part 1508 (the CEQ Regulations). Any qualifications will be provided in the definitions set forth in each subpart of this regulation.
(b) The term CEQ Regulations means the regulations issued by the Council on Environmental Quality on November 29, 1978 (see 43 FR 55978), which implement Executive Order 11991. The CEQ Regulations will often be referred to throughout this regulation by reference to 40 CFR part 1500 et al.
(c) The term environmental review means the process whereby an evaluation is undertaken by EPA to determine whether a proposed Agency action may have a significant impact on the environment and therefore require the preparation of the EIS.
(d) The term environmental information document means any written analysis prepared by an applicant, grantee or contractor describing the environmental impacts of a proposed action. This document will be of sufficient scope to enable the responsible official to prepare an environmental assessment as described in the remaining subparts of this regulation.
(e) The term grant as used in this part means an award of funds or other assistance by a written grant agreement or cooperative agreement under 40 CFR chapter I, subpart B.
Sec. 6. Applicability.
(a) Administrative actions covered. This part applies to the activities of EPA in accordance with the outline of the subparts set forth below. Each subpart describes the detailed environmental review procedures required for each action.
(1) Subpart A sets forth an overview of the regulation. Section 6.102(b) describes the requirements for EPA legislative proposals.
(2) Subpart B describes the requirements for the content of an EIS prepared pursuant to subparts E, F, G, H, and I.
(3) Subpart C describes the requirements for coordination of all environmental laws during the environmental review undertaken pursuant to subparts E, F, G, H, and I.
(4) Subpart D describes the public information requirements which must be undertaken in conjunction with the environmental review requirements under subparts E, F, G, H, and I.
(5) Subpart E describes the environmental review requirements for the wastewater treatment construction grants program under Title II of the Clean Water Act.
(6) Subpart F describes the environmental review requirements for new source National Pollutant Discharge Elimination System (NPDES) permits under section 402 of the Clean Water Act.
(7) Subpart G describes the environmental review requirements for research and development programs undertaken by the Agency.
(8) Subpart H describes the environmental review requirements for solid waste demonstration projects undertaken by the Agency.
(9) Subpart I describes the environmental review requirements for construction of special purpose facilities and facility renovations by the Agency.
(b) Legislative proposals. As required by the CEQ Regulations, legislative EISs are required for any legislative proposal developed by EPA which significantly affects the quality of the human environment. A preliminary draft EIS shall be prepared by the responsible EPA office concurrently with the development of the legislative proposal and contain information required under subpart B. The EIS shall be processed in accordance with the requirements set forth under 40 CFR 1506.8.
(c) Application to ongoing activities--(1) General. The effective date for these regulations is December 5, 1979. These regulations do not apply to an EIS or supplement to that EIS if the draft EIS was filed with the Office of External Affairs, (OEA) before July 30, 1979. No completed environmental documents need be redone by reason of these regulations.
(2) With regard to activities under subpart E, these regulations shall apply to all EPA environmental review procedures effective December 15, 1979. However, for facility plans begun before December 15, 1979, the responsible official shall impose no new requirements on the grantee. Such grantees shall comply with requirements applicable before the effective date of this regulation. Notwithstanding the above, this regulation shall apply to any facility plan submitted to EPA after September 30, 1980.
Sec. 6.103 Responsibilities.
(a) General responsibilities. (1) The responsible official's duties include:
(i) Requiring applicants, contractors, and grantees to submit environmental information documents and related documents and assuring that environmental reviews are conducted on proposed EPA projects at the earliest possible point in EPA's decision-making process. In this regard, the responsible official shall assure the early involvement and availability of information for private applicants and other non-Federal entities requiring EPA approvals.
(ii) When required, assuring that adequate draft EISs are prepared and distributed at the earliest possible point in EPA's decision-making process, their internal and external review is coordinated, and final EISs are prepared and distributed.
(iii) When an EIS is not prepared, assuring documentation of the decision to grant a categorical exclusion, or assuring that findings of no significant impact (FNSIs) and environmental assessments are prepared and distributed for those actions requiring them.
(iv) Consulting with appropriate officials responsible for other environmental laws set forth in subpart C.
(v) Consulting with the Office of External Affairs (OEA) on actions involving unresolved conflicts concerning this part or other Federal agencies.
(vi) When required, assuring that public participation requirements are met.
(2) Office of External Affairs duties include: (i) Supporting the Administrator in providing EPA policy guidance and assuring that EPA offices establish and maintain adequate administrative procedures to comply with this part.
(ii) Monitoring the overall timeliness and quality of the EPA effort to comply with this part.
(iii) Providing assistance to responsible officials as required, i.e., preparing guidelines describing the scope of environmental information required by private applicants relating to their proposed actions.
(iv) Coordinating the training of personnel involved in the review and preparation of EISs and other associated documents.
(v) Acting as EPA liaison with the Council on Environmental Quality and other Federal and State entities on matters of EPA policy and administrative mechanisms to facilitate external review of EISs, to determine lead agency and to improve the uniformity of the NEPA procedures of Federal agencies.
(vi) Advising the Administrator and Deputy Administrator on projects which involve more than one EPA office, are highly controversial, are nationally significant, or pioneer EPA policy, when these projects have had or should have an EIS prepared on them.
(vii) Carrying out administrative duties relating to maintaining status of EISs within EPA, i.e., publication of notices of intent in the Federal Register and making available to the public status reports on EISs and other elements of the environmental review process.
(3) Office of an Assistant Administrator duties include: (i) Providing specific policy guidance to their respective offices and assuring that those offices establish and maintain adequate administrative procedures to comply with this part.
(ii) Monitoring the overall timeliness and quality of their respective office's efforts to comply with this part.
(iii) Acting as liaison between their offices and the OEA and between their offices and other Assistant Administrators or Regional Administrators on matters of agencywide policy and procedures.
(iv) Advising the Administrator and Deputy Administrator through the OEA on projects or activities within their respective areas of responsibilities which involve more than one EPA office, are highly controversial, are nationally significant, or pioneer EPA policy, when these projects will have or should have an EIS prepared on them.
(v) Pursuant to Sec. 6.102(b) of this subpart, preparing legislative EISs as appropriate on EPA legislative initiatives.
(4) The Office of Policy, Planning, and Evaluation duties include: responsibilities for coordinating the preparation of EISs required on EPA legislative proposals in accordance with Sec. 6.102(b).
(b) Responsibilities for subpart E--(1) Responsible official. The responsible official for EPA actions covered by this subpart is the Regional Administrator.
(2) Assistant Administrator. The responsibilities of the Assistant Administrator, as described in Sec. 6.103(a)(3), shall be assumed by the Assistant Administrator for Water for EPA actions covered by this subpart.
(c) Responsibilities for subpart F--(1) Responsible official. The responsible official for activities covered by this subpart is the Regional Administrator.
(2) Assistant Administrator. The responsibilities of the Assistant Administrator, as described in Sec. 6.103(a)(3), shall be assumed by the Assistant Administrator for Enforcement and Compliance Monitoring for EPA actions covered by this subpart.
(d) Responsibilities for subpart G. The Assistant Administrator for Research and Development will be the responsible official for activities covered by this subpart.
(e) Responsibilities for subpart H. The Assistant Administrator for Solid Waste and Emergency Response will be the responsible official for activities covered by this subpart.
(f) Responsibilities for subpart I. The responsible official for new construction and modification of special purpose facilities is as follows:
(1) The Chief, Facilities Engineering and Real Estate Branch, Facilities and Support Services Division, Office of the Assistant Administrator for Administration and Resource Management (OARM) shall be the responsible official on all new construction of special purpose facilities and on all new modification projects for which the Facilities Engineering and Real Estate Branch has received a funding allowance and for all other field components not covered elsewhere in paragraph (f) of this section.
(2) The Regional Administrator shall be the responsible official on all improvement and modification projects for which the regional office has received the funding allowance.
Sec. 6.104 Early involvement of private parties.
As required by 40 CFR 1501.2(d) and Sec. 6.103(a)(3)(v) of this regulation, responsible officials must ensure early involvement of private applicants or other non-Federal entities in the environmental review process related to EPA grant and permit actions set forth under subparts E, F, G, and H. The responsible official in conjunction with OEA shall:
(a) Prepare where practicable, generic guidelines describing the scope and level of environmental information required from applicants as a basis for evaluating their proposed actions, and make these guidelines available upon request.
(b) Provide such guidance on a project-by-project basis to any applicant seeking assistance.
(c) Upon receipt of an application for agency approval, or notification that an application will be filed, consult as required with other appropriate parties to initiate and coordinate the necessary environmental analyses.
Sec. 6.105 Synopsis of environmental review procedures.
(a) Responsible official. The responsible official shall utilize a systematic, interdisciplinary approach to integrate natural and social sciences as well as environmental design arts in planning programs and making decisions which are subject to environmental review. The respective staffs may be supplemented by professionals from other agencies (see 40 CFR 1501.6) or consultants whenever in-house capabilities are insufficiently interdisciplinary.
(b) Environmental information documents (EID). Environmental information documents (EIDs) must be prepared by applicants, grantees, or permittees and submitted to EPA as required in subparts E, F, G, H, and I. EIDs will be of sufficient scope to enable the responsible official to prepare an environmental assessment as described under Sec. 6.105(d) of this part and subparts E through I. EIDs will not have to be prepared for actions where a categorical exclusion has been granted.
(c) Environmental reviews. Environmental reviews shall be conducted on the EPA activities outlined in Sec. 6.102 of this part and set forth under subparts E, F, G, H and I. This process shall consist of a study of the action to identify and evaluate the related environmental impacts. The process shall include a review of any related environmental information document to determine whether any significant impacts are anticipated and whether any changes can be made in the proposed action to eliminate significant adverse impacts; when an EIS is required, EPA has overall responsibility for this review, although grantees, applicants, permittees or contractors will contribute to the review through submission of environmental information documents.
(d) Environmental assessments. Environmental assessments (i.e., concise public documents for which EPA is responsible) are prepared to provide sufficient data and analysis to determine whether an EIS or finding of no significant impact is required. Where EPA determines that a categorical exclusion is appropriate or an EIS will be prepared, there is no need to prepare a formal environmental assessment.
(e) Notice of intent and EISs. When the environmental review indicates that a significant environmental impact may occur and significant adverse impacts can not be eliminated by making changes in the project, a notice of intent to prepare an EIS shall be published in the Federal Register, scoping shall be undertaken in accordance with 40 CFR 1501.7, and a draft EIS shall be prepared and distributed. After external coordination and evaluation of the comments received, a final EIS shall be prepared and disseminated. The final EIS shall list any mitigation measures necessary to make the recommended alternative environmentally acceptable.
(f) Finding of no significant impact (FNSI). When the environmental review indicates no significant impacts are anticipated or when the project is altered to eliminate any significant adverse impacts, a FNSI shall be issued and made available to the public. The environmental assessment shall be included as a part of the FNSI. The FNSI shall list any mitigation measures necessary to make the recommended alternative environmentally acceptable.
(g) Record of decision. At the time of its decision on any action for which a final EIS has been prepared, the responsible official shall prepare a concise public record of the decision. The record of decision shall describe those mitigation measures to be undertaken which will make the selected alternative environmentally acceptable. Where the final EIS recommends the alternative which is ultimately chosen by the responsible official, the record of decision may be extracted from the executive summary to the final EIS.
(h) Monitoring. The responsible official shall provide for monitoring to assure that decisions on any action where a final EIS has been prepared are properly implemented. Appropriate mitigation measures shall be included in actions undertaken by EPA.
Sec. 6.106 Deviations.
(a) General. The Assistant Administrator, OEA, is authorized to approve deviations from these regulations. Deviation approvals shall be made in writing by the Assistant Administrator, OEA.
(b) Requirements. (1) Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the substantive provisions of these regulations or the CEQ Regulations, the responsible official shall notify the Assistant Administrator, OEA, before taking such action. The responsible official shall consider to the extent possible alternative arrangements; such arrangements will be limited to actions necessary to control the immediate impacts of the emergency; other actions remain subject to the environmental review process. The Assistant Administrator, OEA, after consulting CEQ, will inform the responsible official, as xpeditiously as possible of the disposition of his request.
(2) Where circumstances make it necessary to take action without observing procedural provisions of these regulations, the responsible official shall notify the Assistant Administrator,OEA, before taking such action. If the Assistant Administrator, OEA, determines such a deviation would be in the best interest of the Government, he shall inform the responsible official, as soon as possible, of his approval.
(3) The Assistant Administrator, OEA, shall coordinate his action on a deviation under Sec. 6.106(b)(1) or (2) of this part with the Director, Grants Administration Division, Office of Planning and Management, for any required grant-related deviation under 40 CFR 30.1000, as well as the appropriate Assistant Administrator.
Sec. 6.107 Categorical exclusions.
(a) General. Categories of actions which do not individually, cumulatively over time, or in conjunction with other Federal, State, local, or private actions have a significant effect on the quality of the human environment and which have been identified as having no such effect based on the requirements in Sec. 6.505, may be exempted from the substantive environmental review requirements of this part. Environmental information documents and environmental assessments or environmental impact statements will not be required for excluded actions.
(b) Determination. The responsible official shall determine whether an action is eligible for a categorical exclusion as established by general criteria in Sec. 6.107(d) and (e) and any applicable criteria in program specific subparts of part 6 of this title. A determination shall be made as early as possible following the receipt of an application. The responsible official shall document the decision to issue or deny an exclusion as soon as practicable following review in accordance with Sec. 6.400(f). For qualified actions, the documentation shall include the application, a brief description of the proposed action, and a brief statement of how the action meets the criteria for a categorical exclusion without violating criteria for not granting an exclusion.
(c) Revocation. The responsible official shall revoke a categorical exclusion and shall require a full environmental review if, subsequent to the granting of an exclusion, the responsible official determines that: (1) The proposed action no longer meets the requirements for a categorical exclusion due to changes in the proposed action; or (2) determines from new evidence that serious local or environmental issues exist; or (3) that Federal, State, local, or tribal laws are being or may be violated.
(d) General categories of actions eligible for exclusion. Actions consistent with any of the following categories are eligible for a categorical exclusion:
(1) Actions which are solely directed toward minor rehabilitation of existing facilities, functional replacement of equipment, or towards the construction of new ancillary facilities adjacent or appurtenant to existing facilities;
(2) Other actions specifically allowed in program specific subparts of this regulation; or
(3) Other actions developed in accordance with paragraph (f) of this section.
(e) General criteria for not granting a categorical exclusion. (1) The full environmental review procedures of this part must be followed if undertaking an action consistent with allowable categories in paragraph (d) of this section may involve serious local or environmental issues, or meets any of the criteria listed below:
(i) The action is known or expected to have a significant effect on the quality of the human environment, either individually, cumulatively over time, or in conjunction with other Federal, State, local, tribal or private actions;
(ii) The action is known or expected to directly or indirectly affect:
(A) abCultural resource areas such as archaeological and historic sites in accordance with Sec. 6.301,
(B) abEndangered or threatened species and their critical habitats in accordance with Sec. 6.302 or State lists,
(C) abEnvironmentally important natural resource areas such as floodplains, wetlands, important farmlands, aquifer recharge zones in accordance with Sec. 6.302, or
(D) abOther resource areas identified in supplemental guidance issued by the OEA;
(iii) The action is known or expected not to be cost-effective or to cause significant public controversy; or
(iv) Appropriate specialized program specific criteria for not granting an exclusion found in other subparts of this regulation are applicable to the action.
(2) Notwithstanding the provisions of paragraph (d) of this section, if any of the conditions cited in paragraph (e)(1) of this section exist, the responsible official shall ensure:
(i) That a categorical exclusion is not granted or, if previously granted, that it is revoked according to paragraph (c) of this section;
(ii) That an adequate EID is prepared; and
(iii) That either an environmental assessment and FNSI or a notice of intent for an EIS and ROD is prepared and issued.
(f) Developing new categories of excluded actions. The responsible official, or other interested parties, may request that a new general or specialized program specific category of excluded actions be created, or that an existing category be amended or deleted. The request shall be in writing to the Assistant Administrator, OEA, and shall contain adequate information to support the request. Proposed new categories shall be developed by OEA and published in the Federal Register as a proposed rule, amending paragraph (d) of this section when the proposed new category applies to all eligible programs or, amending appropriate paragraphs in other subparts of this part when the proposed new category applies to one specific program. The publication shall include a thirty (30) day public comment period. In addition to criteria for specific programs listed in other subparts of this part, the following general criteria shall be considered in evaluating proposals for new categories:
(1) Any action taken seldom results in the effects identified in general or specialized program specific criteria identified through the application of criteria for not granting a categorical exclusion;
(2) Based upon previous environmental reviews, actions consistent with the proposed category have not required the preparation of an EIS; and
(3) Whether information adequate to determine if a potential action is consistent with the proposed category will normally be available when needed.
Sec. 6.108 Criteria for initiating an EIS.
The responsible official shall assure that an EIS will be prepared and issued for actions under subparts E, G, H, and I when it is determined that any of the following conditions exist:
(a) The Federal action may significantly affect the pattern and type of land use (industrial, commercial, agricultural, recreational, residential) or growth and distribution of population;
(b) The effects resulting from any structure or facility constructed or operated under the proposed action may conflict with local, regional or State land use plans or policies;
(c) The proposed action may have significant adverse effects on wetlands, including indirect and cumulative effects, or any major part of a structure or facility constructed or operated under the proposed action may be located in wetlands;
(d) The proposed action may significantly affect threatened and endangered species or their habitats identified in the Department of the Interior's list, in accordance with Sec. 6.302, or a State's list, or a structure or a facility constructed or operated under the proposed action may be located in the habitat;
(e) Implementation of the proposed action or plan may directly cause or induce changes that significantly:
(1) Displace population;
(2) Alter the character of existing residential areas;
(3) Adversely affect a floodplain; or
(4) Adversely affect significant amounts of important farmlands as defined in requirements in Sec. 6.302(c), or agricultural operations on this land.
(f) The proposed action may, directly, indirectly or cumulatively have significant adverse effect on parklands, preserves, other public lands or areas of recognized scenic, recreational, archaeological, or historic value; or
(g) The Federal action may directly or through induced development have a significant adverse effect upon local ambient air quality, local ambient noise levels, surface water or groundwater quality or quantity, water supply, fish, shellfish, wildlife, and their natural habitats.
Sec. 6.200 The environmental impact statement.
Preparers of EISs must conform with the requirements of 40 CFR part 1502 in writing EISs.
Subpart B--Content of EISs
Sec. 6.201 Format.
The format used for EISs shall encourage good analysis and clear presentation of alternatives, including the proposed action, and their environmental, economic and social impacts. The following standard format for EISs should be used unless the responsible official determines that there is a compelling reason to do otherwise:
(a) Cover sheet;
(b) Executive Summary;
(c) Table of contents;
(d) Purpose of and need for action;
(e) Alternatives including proposed action;
(f) Affected environment;
(g) Environmental consequences of the alternatives;
(h) Coordination (includes list of agencies, organizations, and persons to whom copies of the EIS are sent);
(i) List of preparers;
(j) Index (commensurate with complexity of EIS);
Sec. 6.202 Executive summary.
The executive summary shall describe in sufficient detail (10-15 pages) the critical facets of the EIS so that the reader can become familiar with the proposed project or action and its net effects. The executive summary shall focus on:
(a) The existing problem;
(b) A brief description of each alternative evaluated (including the preferred and no action alternatives) along with a listing of the environmental impacts, possible mitigation measures relating to each alternative, and any areas of controversy (including issues raised by governmental agencies and the public); and
(c) Any major conclusions.
A comprehensive summary may be prepared in instances where the EIS is unusually long in nature. In accordance with 40 CFR 1502.19, the comprehensive summary may be circulated in lieu of the EIS; however, both documents shall be distributed to any Federal, State and local agencies who have EIS review responsibilities and also shall be made available to other interested parties upon request.
Sec. 6.203 Body of EISs.
(a) Purpose and need. The EIS shall clearly specify the underlying purpose and need to which EPA is responding. If the action is a request for a permit or a grant, the EIS shall clearly specify the goals and objectives of the applicant.
(b) Alternatives including the proposed action. In addition to 40 CFR 1502.14, the EIS shall discuss:
(1) Alternatives considered by the applicant. This section shall include a balanced description of each alternative considered by the applicant. These discussions shall include size and location of facilities, land requirements, operation and maintenance requirements, auxiliary structures such as pipelines or transmission lines, and construction schedules. The alternative of no action shall be discussed and the applicant's preferred alternative(s) shall be identified. For alternatives which were eliminated from detailed study, a brief discussion of the reasons for their having been eliminated shall be included.
(2) Alternatives available to EPA. EPA alternatives to be discussed shall include: (i) Taking an action; or (ii) taking an action on a modified or alternative project, including an action not considered by the applicant; and (iii) denying the action.
(3) Alternatives available to other permitting agencies. When preparing a joint EIS, and if applicable, the alternatives available to other Federal and/or State agencies shall be discussed.
(4) Identifying preferred alternative. In the final EIS, the responsible official shall signify the preferred alternative.
(c) Affected environment and environmental consequences of the alternatives.
The affected environment on which the evaluation of each alternative shall be based includes, for example, hydrology, geology, air quality, noise, biology, socioeconomics, energy, land use, and archeology and historic subjects. The discussion shall be structured so as to present the total impacts of each alternative for easy comparison among all alternatives by the reader. The effects of a ``no action'' alternative should be included to facilitate reader comparison of the beneficial and adverse impacts of other alternatives to the applicant doing nothing. A description of the environmental setting shall be included in the ``no action'' alternative for the purpose of providing needed background information. The amount of detail in describing the affected environment shall be commensurate with the complexity of the situation and the importance of the anticipated impacts.
(d) Coordination. The EIS shall include:
(1) The objections and suggestions made by local, State, and Federal agencies before and during the EIS review process must be given full consideration, along with the issues of public concern expressed by individual citizens and interested environmental groups. The EIS must include discussions of any such comments concerning our actions, and the author of each comment should be identified. If a comment has resulted in a change in the project or the EIS, the impact statement should explain the reason.
(2) Public participation through public hearings or scoping meetings shall also be included. If a public hearing has been held prior to the publication of the EIS, a summary of the transcript should be included in this section. For the public hearing which shall be held after the publication of the draft EIS, the date, time, place, and purpose shall be included here.
(3) In the final EIS, a summary of the coordination process and EPA responses to comments on the draft EIS shall be included.
Sec. 6.204 Incorporation by reference.
In addition to 40 CFR 1502.21, material incorporated into an EIS by reference shall be organized to the extent possible into a Supplemental information Document and be made available for review upon request. No material may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the period allowed for comment.
Sec. 6.205 List of preparers.
When the EIS is prepared by contract, either under direct contract to EPA or through an applicant's or grantee's contractor, the responsible official must independently evaluate the EIS prior to its approval and take responsibility for its scope and contents. The EPA officials who undertake this evaluation shall also be described under the list of preparers.
Subpart C--Coordination With Other Environmental Review and Consultation Requirements
Sec. 6.300 General.
Various Federal laws and executive orders address specific environmental concerns. The responsible official shall integrate to the greatest practicable extent the applicable procedures in this subpart during the implementation of the environmental review process under subparts E through I. This subpart presents the central requirements of these laws and executive orders. It refers to the pertinent authority and regulations or guidance that contain the procedures. These laws and executive orders establish review procedures independent of NEPA requirements. The responsible official shall be familiar with any other EPA or appropriate agency procedures implementing these laws and executive orders.
Sec. 6.301 Landmarks, historical, and archeological sites.
EPA is subject to the requirements of the Historic Sites Act of 1935, 16 U.S.C. 461 et seq., the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq., the Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 et seq., and Executive Order 11593, entitled ``Protection and Enhancement of the Cultural Environment.'' These statutes, regulations and executive orders establish review procedures independent of NEPA requirements.
(a) National natural landmarks. Under the Historic Sites Act of 1935, the Secretary of the Interior is authorized to designate areas as national natural landmarks for listing on the National Registry of Natural Landmarks. In conducting an environmental review of a proposed EPA action, the responsible official shall consider the existence and location of natural landmarks using information provided by the National Park Service pursuant to 36 CFR 62.6(d) to avoid undesirable impacts upon such landmarks.
(b) Historic, architectural, archeological, and cultural sites. Under section 106 of the National Historic Preservation Act and Executive Order 11593, if an EPA undertaking affects any property with historic, architectural, archeological or cultural value that is listed on or eligible for listing on the National Register of Historic Places, the responsible official shall comply with the procedures for consultation and comment promulgated by the Advisory Council on Historic Preservation in 36 CFR part 800. The responsible official must identify properties affected by the undertaking that are potentially eligible for listing on the National Register and shall request a determination of eligibility from the Keeper of the National Register, Department of the Interior, under the procedures in 36 CFR part 63.
(c) Historic, prehistoric and archeological data. Under the Archeological and Historic Preservation Act, if an EPA activity may cause irreparable loss or destruction of significant scientific, prehistoric, historic or archeological data, the responsible official or the Secretary of the Interior is authorized to undertake data recovery and preservation activities. Data recovery and preservation activities shall be conducted in accordance with implementing procedures promulgated by the Secretary of the Interior. The National Park Service has published technical standards and guidelines regarding archeological preservation activities and methods at 48 FR 44716 (September 29, 1983).
Sec. 6.302 Wetlands, floodplains, important farmlands, coastal zones, wild and scenic rivers, fish and wildlife, and endangered species.
The following procedures shall apply to EPA administrative actions in programs to which the pertinent statute or executive order applies.
(a) Wetlands protection. Executive Order 11990, Protection of Wetlands, requires Federal agencies conducting certain activities to avoid, to the extent possible, the adverse impacts associated with the destruction or loss of wetlands and to avoid support of new construction in wetlands if a practicable alternative exists. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection (dated January 5, 1979, incorporated as appendix A hereto) requires EPA programs to determine if proposed actions will be in or will affect wetlands. If so, the responsible official shall prepare a floodplains/wetlands assessment, which will be part of the environmental assessment or environmental impact statement. The responsible official shall either avoid adverse impacts or minimize them if no practicable alternative to the action exists.
(b) Floodplain management. Executive Order 11988, Floodplain Management, requires Federal agencies to evaluate the potential effects of actions they may take in a floodplain to avoid, to the extent possible, adverse effects associated with direct and indirect development of a floodplain. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection (dated January 5, 1979, incorporated as appendix A hereto), requires EPA programs to determine whether an action will be located in or will affect a floodplain. If so, the responsible official shall prepare a floodplain/wetlands assessment. The assessment will become part of the environmental assessment or environmental impact statement. The responsible official shall either avoid adverse impacts or minimize them if no practicable alternative exists.
(c) Important farmlands. It is EPA's policy as stated in the EPA Policy To Protect Environmentally Significant Agricultural Lands, dated September 8, 1978, to consider the protection of the Nation's significant/important agricultural lands from irreversible conversion to uses which result in its loss as an environmental or essential food production resource. In addition the Farmland Protection Policy Act, (FPPA) 7 U.S.C. 4201 et seq., requires Federal agencies to use criteria developed by the Soil Conservation Service, U.S. Department of Agriculture, to:
(1) Identify and take into account the adverse effects of their programs on the preservation of farmlands from conversion to other uses;
(2) Consider alternative actions, as appropriate, that could lessen such adverse impacts; and
(3) Assure that their programs, to the extent possible, are compatible with State and local government and private programs and policies to protect farmlands. If an EPA action may adversely impact farmlands which are classified prime, unique or of State and local importance as defined in the Act, the responsible official shall in all cases apply the evaluative criteria promulgated by the U.S. Department of Agriculture at 7 CFR part 658. If categories of important farmlands, which include those defined in both the FPPA and the EPA policy, are identified in the project study area, both direct and indirect effects of the undertaking on the remaining farms and farm support services within the project area and immediate environs shall be evaluated. Adverse effects shall be avoided or mitigated to the extent possible.
(d) Coastal zone management. The Coastal Zone Management Act, 16 U.S.C. 1451 et seq., requires that all Federal activities in coastal areas be consistent with approved State Coastal Zone Management Programs, to the maximum extent possible. If an EPA action may affect a coastal zone area, the responsible official shall assess the impact of the action on the coastal zone. If the action significantly affects the coastal zone area and the State has an approved coastal zone management program, a consistency determination shall be sought in accordance with procedures promulgated by the Office of Coastal Zone Management in 15 CFR part 930.
(e) Wild and scenic rivers. (1) The Wild and Scenic Rivers Act, 16 U.S.C. 1274 et seq., establishes requirements applicable to water resource projects affecting wild, scenic or recreational rivers within the National Wild and Scenic Rivers system as well as rivers designated on the National Rivers Inventory to be studied for inclusion in the national system. Under the Act, a Federal agency may not assist, through grant, loan, license or otherwise, the construction of a water resources project that would have a direct and adverse effect on the values for which a river in the National System or study river on the National Rivers Inventory was established, as determined by the Secretary of the Interior for rivers under the jurisdiction of the Department of the Interior and by the Secretary of Agriculture for rivers under the jurisdiction of the Department of Agriculture. Nothing contained in the foregoing sentence, however, shall:
(i) Preclude licensing of, or assistance to, developments below or above a wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on October 2, 1968; or
(ii) Preclude licensing of, or assistance to, developments below or above a study river or any stream tributary thereto which will not invade the area or diminish the scenic, recreational and fish and wildlife values present in the area on October 2, 1968.
(2) The responsible official shall:
Determine whether there are any wild, scenic or study rivers on the National Rivers Inventory or in the planning area, and (ii) Not recommend authorization of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the administering Secretary in request of appropriations to begin construction of any such project, whether heretofore or hereafter authorized, without advising the administering Secretary, in writing of this intention at least sixty days in advance, and without specifically reporting to the Congress in writing at the time the recommendation or request is made in what respect construction of such project would be in conflict with the purposes of the Wild and Scenic Rivers Act and would affect the component and the values to be protected by the Responsible Official under the Act.
(3) Applicable consultation requirements are found in section 7 of the Act. The Department of Agriculture has promulgated implementing procedures, under section 7 at 36 CFR part 297, which apply to water resource projects located within, above, below or outside a wild and scenic river or study river under the Department's jurisdiction.
(f) Barrier islands. The Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq., generally prohibits new Federal expenditures or financial assistance for any purpose within the Coastal Barrier Resources System on or after October 18, 1982. Specified exceptions to this prohibition are allowed only after consultation with the Secretary of the Interior.
The responsible official shall ensure that consultation is carried out with the Secretary of the Interior before making available new expenditures or financial assistance for activities within areas covered by the Coastal Barriers Resources Act in accord with the U.S. Fish and Wildlife Service published guidelines defining new expenditures and financial assistance, and describing procedures for consultation at 48 FR 45664 (October 6, 1983).
(g) Fish and wildlife protection. The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in actions that will result in the control or structural modification of any natural stream or body of water for any purpose, to take action to protect the fish and wildlife resources which may be affected by the action. The responsible official shall consult with the Fish and Wildlife Service and the appropriate State agency to ascertain the means and measures necessary to mitigate, prevent and compensate for project-related losses of wildlife resources and to enhance the resources. Reports and recommendations of wildlife agencies should be incorporated into the environmental assessment or environmental impact statement. Consultation procedures are detailed in 16 U.S.C. 662.
(h) Endangered species protection. Under the Endangered Species Act, 16 U.S.C. 1531 et seq., Federal agencies are prohibited from jeopardizing threatened or endangered species or adversely modifying habitats essential to their survival. The responsible official shall identify all designated endangered or threatened species or their habitat that may be affected by an EPA action. If listed species or their habitat may be affected, formal consultation must be undertaken with the Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate. If the consultation reveals that the EPA activity may jeopardize a listed species or habitat, mitigation measures should be considered. Applicable consultation procedures are found in 50 CFR part 402.
Sec. 6.303 Air quality.
(a) The Clean Air Act, as amended in 1990, 42 U.S.C. 7476(c), requires Federal actions to conform to any State implementation plan approved or promulgated under section 110 of the Act. For EPA actions, the applicable conformity requirements specified in 40 CFR part 51, subpart W, 40 CFR part 93, subpart B, and the applicable State implementation plan must be met.
(b) In addition, with regard to wastewater treatment works subject to review under subpart E of this part, the responsible official shall consider the air pollution control requirements specified in section 316(b) of the Clean Air Act, 42 U.S.C. 7616, and Agency implementation procedures.
Subpart D--Public and Other Federal Agency Involvement
Sec. 6.400 Public involvement.
(a) General. EPA shall make diligent efforts to involve the public in the environmental review process consistent with program regulations and EPA policies on public participation. The responsible official shall ensure that public notice is provided for in accordance with 40 CFR 1506.6(b) and shall ensure that public involvement is carried out in accordance with EPA Public Participation Regulations, 40 CFR part 25, and other applicable EPA public participation procedures.
(b) Publication of notices of intent. As soon as practicable after his decision to prepare an EIS and before the scoping process, the responsible official shall send the notice of intent to interested and affected members of the public and shall request the OEA to publish the notice of intent in the Federal Register. The responsible official shall send to OEA the signed original notice of intent for Federal Register publication purposes. The scoping process should be initiated as soon as practicable in accordance with the requirements of 40 CFR 1501.7.
Participants in the scoping process shall be kept informed of substantial changes which evolve during the EIS drafting process.
(c) Public meetings or hearings. Public meetings or hearings shall be conducted consistent with Agency program requirements. There shall be a presumption that a scoping meeting will be conducted whenever a notice of intent has been published. The responsible official shall conduct a public hearing on a draft EIS. The responsible official shall ensure that the draft EIS is made available to the public at least 30 days in advance of the hearing.
(d) Findings of no significant impact (FNSI). The responsible official shall allow for sufficient public review of a FNSI before it becomes effective. The FNSI and attendant publication must state that interested persons disagreeing with the decision may submit comments to EPA. The responsible official shall not take administrative action on the project for at least thirty (30) calendar days after release of the FNSI and may allow more time for response. The responsible official shall consider, fully, comments submitted on the FNSI before taking administrative action. The FNSI shall be made available to the public in accordance with the requirements and all appropriate recommendations contained in Sec. 1506.6 of this title.
(e) Record of Decision (ROD). The responsible official shall disseminate the ROD to those parties which commented on the draft or final EIS.
(f) Categorical exclusions. (1) For categorical exclusion determinations under subpart E (Wastewater Treatment Construction Grants Program), an applicant who files for and receives a determination of categorical exclusion under Sec. 6.107(a), or has one rescinded under Sec. 6.107(c), shall publish a notice indicating the determination of eligibility or rescission in a local newspaper of community-wide circulation and indicate the availability of the supporting documentation for public inspection. The responsible official shall, concurrent with the publication of the notice, make the documentation as outlined in Sec. 6.107(b) available to the public and distribute the notice of the determination to all known interested parties.
(2) For categorical exclusion determinations under other subparts of this regulation, no public notice need be issued; however, information regarding these determinations may be obtained by contacting the U.S. Environmental Protection Agency's Office of Research Program Management for ORD actions, or the Office of Federal Activities for other program actions.
Sec. 6.401 Official filing requirements.
(a) General. OEA is responsible for the conduct of the official filing system for EISs. This system was established as a central repository for all EISs which serves not only as means of advising the public of the availability of each EIS but provides a uniform method for the computation of minimum time periods for the review of EISs. OEA publishes a weekly notice in the Federal Register listing all EISs received during a given week. The 45-day and 30-day review periods for draft and final EISs, respectively, are computed from the Friday following a given reporting week. Pursuant to 40 CFR 1506.9, responsible officials shall comply with the guidelines established by OEA on the conduct of the filing system.
(b) Minimum time periods. No decision on EPA actions shall be made until the later of the following dates:
(1) Ninety (90) days after the date established in Sec. 6.401(a) of this part from which the draft EIS review time period is computed.
(2) Thirty (30) days after the date established in Sec. 6.401(a) of this part from which the final EIS review time period is computed.
(c) Filing of EISs. All EISs, including supplements, must be officially filed with OEA. Responsible officials shall transmit each EIS in five (5) copies to the Director, Office of Environmental Review, EIS Filing Section (A-104). OEA will provide CEQ with one copy of each EIS filed. No EIS will be officially filed by OER unless the EIS has been made available to the public. OEA will not accept unbound copies of EISs for filing.
(d) Extensions or waivers. The responsible official may independently extend review periods. In such cases, the responsible official shall notify OEA as soon as possible so that adequate notice may be published in the weekly Federal Register report. OEA upon a showing of compelling reasons of national policy may reduce the prescribed review periods. Also, OEA upon a showing by any other Federal agency of compelling reasons of national policy may extend prescribed review periods, but only after consultation with the responsible official. If the responsible official does not concur with the extension of time, OEA may not extend a prescribed review period more than 30 days beyond the minimum prescribed review period.
(e) Rescission of filed EISs. The responsible official shall file EISs with OEA at the same time they are transmitted to commenting agencies and made available to the public. The responsible official is required to reproduce an adequate supply of EISs to satisfy these distribution requirements prior to filing an EIS. If the EIS is not made available, OEA will consider retraction of the EIS or revision of the prescribed review periods based on the circumstances.
Sec. 6.402 Availability of documents.
(a) General. The responsible official will ensure sufficient copies of the EIS are distributed to interested and affected members of the public and are made available for further public distribution. EISs, comments received, and any underlying documents should be available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552(b)), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed actions. To the extent practicable, materials made available to the public shall be provided without charge; otherwise, a fee may be imposed which is not more than the actual cost of reproducing copies required to be sent to another Federal agency.
(b) Public information. Lists of all notices, determinations and other reports/documentation, related to these notices and determinations, involving CEs, EAs, FNSIs, notices of intent, EISs, and RODs prepared by EPA shall be available for public inspection and maintained by the responsible official as a monthly status report. OEA shall maintain a comprehensive list of notices of intent and draft and final EISs provided by all responsible officials for public inspection including publication in the Federal Register. In addition, OEA will make copies of all EPA-prepared EISs available for public inspection; the responsible official shall do the same for any EIS he/she undertakes.
Sec. 6.403 The commenting process.
(a) Inviting comments. After preparing a draft EIS and before preparing a final EIS, the responsible official shall obtain the comments of Federal agencies, other governmental entities and the public in accordance with 40 CFR 1503.1.
(b) Response to comments. The responsible official shall respond to comments in the final EIS in accordance with 40 CFR 1503.4.
Sec. 6.404 Supplements.
(a) General. The responsible official shall consider preparing supplements to draft and final EISs in accordance with 40 CFR 1502.9(c). A supplement shall be prepared, circulated and filed in the same fashion (exclusive of scoping) as draft and final EISs.
(b) Alternative procedures. In the case where the responsible official wants to deviate from existing procedures, OEA shall be consulted. OEA shall consult with CEQ on any alternative arrangements.
Subpart F--Environmental Review Procedures for the New Source NPDES Program
Sec. 6.600 Purpose.
(a) General. This subpart provides procedures for carrying out the environmental review process for the issuance of new source National Pollutant Discharge Elimination System (NPDES) discharge permits authorized under section 306, section 402, and section 511(c)(1) of the Clean Water Act.
(b) Permit regulations. All references in this subpart to the permit regulations shall mean parts 122 and 124 of title 40 of the CFR relating to the NPDES program.
Sec. 6.601 Definitions.
(a) The term administrative action for the sake of this subpart means the issuance by EPA of an NPDES permit to discharge as a new source, pursuant to 40 CFR 124.15.
(b) The term applicant for the sake of this subpart means any person who applies to EPA for the issuance of an NPDES permit to discharge as a new source.
Sec. 6.602 Applicability.
(a) General. The procedures set forth under subparts A, B, C and D, and this subpart shall apply to the issuance of new source NPDES permits, except for the issuance of a new source NPDES permit from any State which has an approved NPDES program in accordance with section 402(b) of the Clean Water Act.
(b) New Source Determination. An NPDES permittee must be determined a new source before these procedures apply. New source determinations will be undertaken pursuant to the provisions of the permit regulations under Sec. 122.29(a) and (b) of this chapter and Sec. 122.53(h).
Sec. 6.603 Limitations on actions during environmental review process.
The processing and review of an applicant's NPDES permit application shall proceed concurrently with the procedures within this subpart. Actions undertaken by the applicant or EPA shall be performed consistent with the requirements of Sec. 122.29(c) of this chapter.
Sec. 6.604 Environmental review process.
(a) New source. If EPA's initial determination under Sec. 6.602(b) is that the facility is a new source, the responsible official shall evaluate any environmental information to determine if any significant impacts are anticipated and an EIS is necessary. If the permit applicant requests, the responsible official shall establish time limits for the completion of the environmental review process consistent with 40 CFR 1501.8.
(b) Information needs. Information necessary for a proper environmentalreview shall be provided by the permit applicant in an environmental information document. The responsible official shall consult with the applicant to determine the scope of an environmental information document. In doing this the responsible official shall consider the size of the new source and the extent to which the applicant is capable of providing the required information. The responsible official shall not require the applicant to gather data or perform analyses which unnecessarily duplicate either existing data or the results of existing analyses available to EPA. The responsible official shall keep requests for data to the minimum consistent with his responsibilities under NEPA.
(c) Environmental assessment. The responsible official shall prepare a written environmental assessment based on an environmental review of either the environmental information document and/or any other available environmental information.
(d) EIS determination. (1) When the environmental review indicates that a significant environmental impact may occur and that the significant adverse impacts cannot be eliminated by making changes in the proposed new source project, a notice of intent shall be issued, and a draft EIS prepared and distributed. When the environmental review indicates no significant impacts are anticipated or when the proposed project is changed to eliminate the significant adverse impacts, a FNSI shall be issued which lists any mitigation measures necessary to make the recommended alternative environmentally acceptable.
(2) The FNSI together with the environmental assessment that supports the finding shall be distributed in accordance with Sec. 6.400(d) of this regulation.
(e) Lead agency. (1) If the environmental review reveals that the preparation of an EIS is required, the responsible official shall determine if other Federal agencies are involved with the project. The responsible official shall contact all other involved agencies and together the agencies shall decide the lead agency based on the criteria set forth in 40 CFR 1501.5.
(2) If, after the meeting of involved agencies, EPA has been determined to be the lead agency, the responsible official may request that other involved agencies be cooperating agencies. Cooperating agencies shall be chosen and shall be involved in the EIS preparation process in the manner prescribed in the 40 CFR 1501.6(a). If EPA has been determined to be a cooperating agency, the responsible official shall be involved in assisting in the preparation of the EIS in the manner prescribed in 40 CFR 1501.6(b).
(f) Notice of intent. (1) If EPA is the lead agency for the preparation of an EIS, the responsible official shall arrange through OER for the publication of the notice of intent in the Federal Register, distribute the notice of intent and arrange and conduct a scoping meeting as outlined in 40 CFR 1501.7.
(2) If the responsible official and the permit applicant agree to a third party method of EIS preparation, pursuant to Sec. 6.604(g)(3) of this part, the responsible official shall insure that a notice of intent is published and that a scoping meeting is held before the third party contractor begins work which may influence the scope of the EIS.
(g) EIS method. EPA shall prepare EISs by one of the following means:
(1) Directly by its own staff;
(2) By contracting directly with a qualified consulting firm; or
(3) By utilizing a third party method, whereby the responsible official enters into a third party agreement for the applicant to engage and pay for the services of a third party contractor to prepare the EIS. Such an agreement shall not be initiated unless both the applicant and the responsible official agree to its creation. A third party agreement will be established prior to the applicant's environmental information document and eliminate the need for that document. In proceeding under the third party agreement, the responsible official shall carry out the following practices:
(i) In consultation with the applicant, choose the third party contractor and manage that contract.
(ii) Select the consultant based on his ability and an absence of conflict of interest. Third party contractors will be required to execute a disclosure statement prepared by the responsible official signifying they have no financial or other conflicting interest in the outcome of the project.
(iii) Specify the information to be developed and supervise the gathering, analysis and presentation of the information. The responsible official shall have sole authority for approval and modification of the statements, analyses, and conclusions included in the third party EIS.
(h) Documents for the administrative record. Pursuant to 40 CFR 124.9(b)(6) and 124.18(b)(5) any environmental assessment, FNSI EIS, or supplement to an EIS shall be made a part of the administrative record related to permit issuance.
Sec. 6.605 Criteria for preparing EISs.
(a) General guidelines. (1) When determining the significance of a proposed new source's impact, the responsible official shall consider both its short term and long term effects as well as its direct and indirect effects and beneficial and adverse environmental impacts as defined in 40 CFR 1508.8.
(2) If EPA is proposing to issue a number of new source NPDES permits during a limited time span and in the same general geographic area, the responsible official shall examine the possibility of tiering EISs. If the permits are minor and environmentally insignificant when considered separately, the responsible official may determine that the cumulative impact of the issuance of all these permits may have a significant environmental effect and require an EIS for the area. Each separate decision to issue an NPDES permit shall then be based on the information in this areawide EIS. Site specific EISs may be required in certain circumstances in addition to the areawide EIS.
(b) Specific criteria. An EIS will be prepared when:
(1) abThe new source will induce or accelerate significant changes in industrial, commercial, agricultural, or residential land use concentrations or distributions which have the potential for significant environmental effects. Factors that should be considered in determining if these changes are environmentally significant include but are not limited to: The nature and extent of the vacant land subject to increased development pressure as a result of the new source; the increases in population or population density which may be induced and the ramifications of such changes; the nature of land use regulations in the affected area and their potential effects on development and the environment; and the changes in the availability or demand for energy and the resulting environmental consequences.
(2) abThe new source will directly, or through induced development, have significant adverse effect upon local ambient air quality, local ambient noise levels, floodplains, surface or groundwater quality or quantity, fish, wildlife, and their natural habitats.
(3) abAny major part of the new source will have significant adverse effect on the habitat of threatened or endangered species on the Department of the Interior's or a State's lists of threatened and endangered species.
(4) abThe environmental impact of the issuance of a new source NPDES permit will have significant direct and adverse effect on a property listed in or eligible for listing in the National Register of Historic Places.
(5) abAny major part of the source will have significant adverse effects on parklands, wetlands, wild and scenic rivers, reservoirs or other important bodies of water, navigation projects, or agricultural lands.
Sec. 6.606 Record of decision.
(a) General. At the time of permit award, the responsible official shall prepare a record of decision in those cases where a final EIS was issued in accordance with 40 CFR 1505.2 and pursuant to the provisions of the permit regulations under 40 CFR 124.15 and 124.18(b)(5). The record of decision shall list any mitigation measures necessary to make the recommended alternative environmentally acceptable.
(b) Mitigation measures. The mitigation measures derived from the EIS process shall be incorporated as conditions of the permit; ancillary agreements shall not be used to require mitigation.
Sec. 6.607 Monitoring.
In accordance with 40 CFR 1505.3 and pursuant to 40 CFR 122.66(c) and 122.10 the responsible official shall ensure that there is adequate monitoring of compliance with all NEPA related requirements contained in the permit.
Appendix A to Part 6--Statement of Procedures on Floodplain Management and Wetlands Protection
Section 1 General
(a) Executive Order 11988 entitled “Floodplain Management” dated May 24, 1977, requires Federal agencies to evaluate the potential effects of actions it may take in a floodplain to avoid adversely impacting floodplains wherever possible, to ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management, including the restoration and preservation of such land areas as natural undeveloped floodplains, and to prescribe procedures to implement the policies and procedures of this Executive Order. Guidance for implementation of the Executive Order has been provided by the U.S. Water Resources Council in its Floodplain Management Guidelines dated February 10, 1978 (see 40 FR 6030).
(b) Executive Order 11990 entitled “Protection of Wetlands”, dated May 24, 1977, requires Federal agencies to take action to avoid adversely impacting wetlands wherever possible, to minimize wetlands destruction and to preserve the values of wetlands, and to prescribe procedures to implement the policies and procedures of this Executive Order.
c. It is the intent of these Executive Orders that, wherever possible, Federal agencies implement the floodplains/wetlands requirements through existing procedures, such as those internal procedures established to implement the National Environmental Policy Act (NEPA) and OMB A-95 review procedures. In those instances where the environmental impacts of a proposed action are not significant enough to require an environmental impact statement (EIS) pursuant to section 102(2)(C) of NEPA, or where programs are not subject to the requirements of NEPA, alternative but equivalent floodplain/wetlands evaluation and notice procedures must be established.
Section 2 Purpose
(a) The purpose of this Statement of Procedures is to set forth Agency policy and guidance for carrying out the provisions of Executive Orders 11988 and 11990.
(b) EPA program offices shall amend existing regulations and procedures to incorporate the policies and procedures set forth in this Statement of Procedures.
c. To the extent possible, EPA shall accommodate the requirements of Executive Orders 11988 and 11990 through the Agency NEPA procedures contained in 40 CFR part 6.
Section 3 Policy
a. The Agency shall avoid wherever possible the long and short term impacts associated with the destruction of wetlands and the occupancy and modification of floodplains and wetlands, and avoid direct and indirect support of floodplain and wetlands development wherever there is a practicable alternative.
b The Agency shall incorporate floodplain management goals and wetlands protection considerations into its planning, regulatory, and decisionmaking processes. It shall also promote the preservation and restoration of floodplains so that their natural and beneficial values can be realized. To the extent possible EPA shall:
(1) Reduce the hazard and risk of flood loss and wherever it is possible to avoid direct or indirect adverse impact on floodplains;
c. The Agency shall incorporate wetlands protection considerations into its planning, regulatory, and decisionmaking processes. It shall minimize the destruction, loss, or degradation of wetlands and preserve and enhance the natural and beneficial values of wetlands. Agency activities shall continue to be carried out consistent with the Administrator's Decision Statement No. 4 dated February 21, 1973 entitled ``EPA Policy to Protect the Nation's Wetlands.''
Section 4 Definitions
a. Base Flood means that flood which has a one percent chance of occurrence in any given year (also known as a 100-year flood). This term is used in the National Flood Insurance Program (NFIP) to indicate the minimum level of flooding to be used by a community in its floodplain management regulations.
b. Base Floodplain means the land area covered by a 100-year flood (one percent chance floodplain). Also see definition of floodplain.
c. Flood or Flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland and/or tidal waters, and/or the unusual and rapid accumulation or runoff of surface waters from any source, or flooding from any other source.
d. Floodplain means the lowland and relatively flat areas adjoining inland and coastal waters and other floodprone areas such as offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year. The base floodplain shall be used to designate the 100-year floodplain (one percent chance floodplain). The critical action floodplain is defined as the 500-year floodplain (0.2 percent chance floodplain).
e. Floodproofing means modification of individual structures and facilities, their sites, and their contents to protect against structural failure, to keep water out or to reduce effects of water entry.
f. Minimize means to reduce to the smallest possible amount or degree.
g. Practicable means capable of being done within existing constraints. The test of what is practicable depends upon the situation and includes consideration of the pertinent factors such as environment, community welfare, cost, or technology.
h. Preserve means to prevent modification to the natural floodplain environment or to maintain it as closely as possible to its natural state.
i. Restore means to re-establish a setting or environment in which the natural functions of the floodplain can again operate.
j. Wetlands means those areas that are inundated by surface or ground water with a frequency sufficient to support and under normal circumstances does or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet meadows, river overflows, mud flats, and natural ponds.
Section 5 Applicability
a. The Executive Orders apply to activities of Federal agencies pertaining to (1) acquiring, managing, and disposing of Federal lands and facilities, (2) providing Federally undertaken, financed, or assisted construction and improvements, and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.
b. These procedures shall apply to EPA's programs as follows: (1) All Agency actions involving construction of facilities or management of lands or property. This will require amendment of the EPA Facilities Management Manual (October 1973 and revisions thereafter).
(2) All Agency actions where the NEPA process applies. This would include the programs under sections 306/402 of the Clean Water Act pertaining to new source permitting and section 201 of the Clean Water Act pertaining to wastewater treatment construction grants.
(3) All agency actions where there is sufficient independent statutory authority to carry out the floodplain/wetlands procedures.
(4) In program areas where there is no EIS requirement nor clear statutory authority for EPA to require procedural implementation, EPA shall continue to provide leadership and offer guidance so that the value of floodplain management and wetlands protection can be understood and carried out to the maximum extent practicable in these programs.
c. These procedures shall not apply to any permitting or source review programs of EPA once such authority has been transferred or delegated to a State. However, EPA shall, to the extent possible, require States to provide equivalent effort to assure support for the objectives of these procedures as part of the State assumption process.
Section 6 Requirements
a. Floodplain/Wetlands review of proposed Agency actions.
(1) Floodplain/Wetlands Determination-- Before undertaking an Agency action, each program office must determine whether or not the action will be located in or affect a floodplain or wetlands. The Agency shall utilize maps prepared by the Federal Insurance Administration of the Federal Emergency Management Agency (Flood Insurance Rate Maps or Flood Hazard Boundary Maps), Fish and Wildlife Service (National Wetlands Inventory Maps), and other appropriate agencies to determine whether a proposed action is located in or will likely affect a floodplain or wetlands. If there is no floodplain/wetlands impact identified, the action may proceed without further consideration of the remaining procedures set forth below.
(2) Early Public Notice--When it is apparent that a proposed or potential agency action is likely to impact a floodplain or wetlands, the public should be informed through appropriate public notice procedures.
(3) Floodplain/Wetlands Assessment--If he Agency determines a proposed action is located in or affects a floodplain or wetlands, a floodplain/wetlands assessment shall be undertaken. For those actions where an environmental assessment (EA) or environmental impact statement (EIS) is prepared pursuant to 40 CFR part 6, the floodplain/wetlands assessment shall be prepared concurrently with these analyses and shall be included in the EA or EIS. In all other cases, a floodplain/wetlands assessment shall be prepared. Assessments shall consist of a description of the proposed action, a discussion of its effect on the floodplain/wetlands, and shall also describe the alternatives considered.
(4) Public Review of Assessments--For proposed actions impacting floodplain/wetlands where an EA or EIS is prepared, the opportunity for public review will be provided through the EIS provisions contained in 40 CFR parts 6, 25, or 35, where appropriate. In other cases, an equivalent public notice of the floodplain/wetlands assessment shall be made consistent with the public involvement requirements of the applicable program.
(5) Minimize, Restore or Preserve--If there is no practicable alternative to locating in or affecting the floodplain or wetlands, the Agency shall act to minimize potential harm to the floodplain or wetlands. The Agency shall also act to restore and preserve the natural and beneficial values of floodplains and wetlands as part of the analysis of all alternatives under consideration.
(6) Agency Decision--After consideration of alternative actions, as they have been modified in the preceding analysis, the Agency shall select the desired alternative. For all Agency actions proposed to be in or affecting a floodplain/wetlands, the Agency shall provide further public notice announcing this decision. This decision shall be accompanied by a Statement of Findings, not to exceed three pages. This Statement shall include: (i) The reasons why the proposed action must be located in or affect the floodplain or wetlands; (ii) a description of significant facts considered in making the decision to locate in or affect the floodplain or wetlands including alternative sites and actions; (iii) a statement indicating whether the proposed action conforms to applicable State or local floodplain protection standards; (iv) a description of the steps taken to design or modify the proposed action to minimize potential harm to or within the floodplain or wetlands; and (v) a statement indicating how the proposed action affects the natural or beneficial values of the floodplain or wetlands. If the provisions of 40 CFR part 6 apply, the Statement of Findings may be incorporated in the final EIS or in the environmental assessment. In other cases, notice should be placed in the Federal Register or other local medium and copies sent to Federal, State, and local agencies and other entities which submitted comments or are otherwise concerned with the floodplain/wetlands assessment. For floodplain actions subject to Office of Management and Budget (OMB) Circular A-95, the Agency shall send the Statement of Findings to State and areawide A-95 clearinghouse in the geographic area affected. At least 15 working days shall be allowed for public and interagency review of the Statement of Findings.
(7) Authorizations/Appropriations--Any requests for new authorizations or appropriations transmitted to OMB shall include, a floodplain/wetlands assessment and, for floodplain impacting actions, a Statement of Findings, if a proposed action will be located in a floodplain or wetlands.
(a) Lead agency concept. To the maximum extent possible, the Agency shall relay on the lead agency concept to carry out the provisions set forth in section 6.a of this appendix. Therefore, when EPA and another Federal agency have related actions, EPA shall work with the other agency to identify which agency shall take the lead in satisfying these procedural requirements and thereby avoid duplication of efforts.
b. Additional floodplain management provisions relating to Federal property and facilities.
(1) abConstruction Activities--EPA controlled structures and facilities must be constructed in accordance with existing criteria and standards set forth under the NFIP and must include mitigation of adverse impacts wherever feasible. Deviation from these requirements may occur only to the extent NFIP standards are demonstrated as inappropriate for a given structure or facility.
(2) abFlood Protection Measures--If newly constructed structures or facilities are to be located in a floodplain, accepted floodproofing and other flood protection measures shall be undertaken. To achieve flood protection, EPA shall, wherever practicable, elevate structures above the base flood level rather than filling land.
(3) abRestoration and Preservation--As part of any EPA plan or action, the potential for restoring and preserving floodplains and wetlands so that their natural and beneficial values can be realized must be considered and incorporated into the plan or action wherever feasible.
(4) abProperty Used by Public--If property used by the public has suffered damage or is located in an identified flood hazard area, EPA shall provide on structures, and other places where appropriate, conspicuous indicators of past and probable flood height to enhance public knowledge of flood hazards.
(5) abTransfer of EPA Property--When property in flood plains is proposed for lease, easement, right-of-way, or disposal to non-Federal public or private parties, EPA shall reference in the conveyance those uses that are restricted under Federal, State and local floodplain regulations and attach other restrictions to uses of the property as may be deemed appropriate. Notwithstanding, EPA shall consider withholdng such properties from conveyance.
Section 7 Implementation
a. Pursuant to section 2, the EPA program offices shall amend existing regulations, procedures, and guidance, as appropriate, to incorporate the policies and procedures set forth in this Statement of Procedures. Such amendments shall be made within six months of the date of these Procedures.
b. The Office of External Affairs (OEA) is responsible for the oversight of the implementation of this Statement of Procedures and shall be given advanced opportunity to review amendments to regulations, procedures, and guidance. OEA shall coordinate efforts with the program offices to develop necessary manuals and more specialized supplementary guidance to carry out this Statement of Procedures.
(2) Where there is no practical alternative to locating in a floodplain, minimize the impact of floods on human safety, health, and welfare, as well as the natural environment;
(3) Restore and preserve natural and beneficial values served by floodplains;
(4) Require the construction of EPA structures and facilities to be in accordance with the standards and criteria, of the regulations promulgated pursuant to the National Flood Insurance Program;
(5) Identify floodplains which require restoration and preservation and recommend management programs necessary to protect these floodplains and to include such considerations as part of on-going planning programs; and
(6) Provide the public with early and continuing information concerning floodplain management and with opportunities for participating in decision making including the (evaluation of) tradeoffs among competing alternatives.