Revision of HHS National Environmental Policy Act Compliance Procedures and Procedures for Environmental Protection

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Revision of HHS National Environmental Policy Act Compliance Procedures and Procedures for Environmental Protection

AGENCY:

Department of Health and Human Services, Office of the Secretary.

ACTION:

Final Notice of Revision of HHS NEPA Procedures.

EFFECTIVE DATE:

February 25, 2000.

SUMMARY:

In accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), as amended, and other related environmental laws, executive orders, and regulations, the Department of Health and Human Services published procedures in 1980 for conducting environmental reviews, preparing necessary documentation and making program decisions to ensure that environmental protection is an integral part of HHS operations. These procedures have been revised and updated. The revised procedures were published in the January 11, 1999,

Federal Register

for comment. Changes recommended by EPA and the Council on Environmental Quality have been included in the final document.

FOR FURTHER INFORMATION CONTACT:

Dick Green, Office of Facilities Services, Department of Health and Human Services, Hubert H. Humphrey Building, Room 729D, 200 Independence Avenue, SW, Washington, DC, 20201. Telephone (202) 619-1994, FAX (202) 619-2692, E-main Address: DGREEN@OS.DHHS.GOV.

Dated: January 31, 2000.

John J. Callahan,

Assistant Secretary for Management and Budget.

Revised General Administration Manual, HHS Part 30, Environmental Protection

PART 30—ENVIRONMENTAL PROTECTION

Contents

Chapter and Title

30-00 Environmental Protection

30-10 Policy

30-20 Administrative Requirements

30-30 General Environmental Review Procedures

30-40 Natural Asset Review

30-50 National Environmental Policy Act (NEPA) Review

30-60 Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA) Requirements

30-70 Pollution Prevention Act of 1990 (PPA) Requirements

30-80 Executive Order 12856, Federal Compliance with Right-To-Know Laws and Pollution Prevention Requirements

30-90 Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition

Subject: Environmental Protection

30-00-00 Purpose

30-00-10 Chapter Organization and Content

30-00-20 Environmental Statutes and Executive Orders

30-00-30 Definitions

30-00-00 Purpose

This Part summarizes and provides guidance on many current statutory, regulatory and Executive Order environmental authorities. It does not create or confer any rights on any person and it is not intended to be used as the sole source of information for any of the reference environmental compliance requirements. The Department recognizes that any of the authorities described herein may be revised after the issuance of this Part. The current specific environmental statute, regulation or Executive Order should be reviewed when questions or conflicts arise. To the extent that any statement in this Part should contradict or conflict with a current applicable statutory, regulatory or Executive Order requirement, that statutory, regulatory or Executive Order requirement shall supersede any inconsistent provision of this GAM Part. Additional questions should be referred to the OPDIV environmental officer, the Departmental environmental program manger, and/or the Office of the General Counsel.

Part 30 of the General Administration Manual establishes Departmental policy and procedures with respect to protection of the environment and the preservation of natural resources. Under Federal statutes, regulations, and Executive Orders, all Federal Departments and agencies are required to comply with all applicable Federal, State and local environmental statutes, laws and regulations and must take into account the environmental consequences of their activities. In many cases, the activities of non-Federal organizations which operate under the authority or with the support of Federal Departments or agencies are also included.

Consistent with the 1994 Presidential Memorandum on Government-to-Government Relations with Native American Tribal Governments, and Executive Order 13084 on Consultation and Coordination with Indian Tribal Governments, consultation and cooperation with Tribal Governemtns must be done where appropriate. Additionally, in certain programs. ``Eligible Tribes'' can be treated in the same manner as States. Some of these programs include certain Clean Air Act programs, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Water Act, Toxic Substances Control Act, and certain roles and responsibilities under the Comprehensive Environmental Response, Compensation and Liability Act.

This part supersedes HHS Part 30, Environmental Protection, 1980, with the exception that Part 30, Chapter 30-40, Cultural Asset Review (Historical Preservation) remains in effect until a separate revised Chapter dealing with this subject is published.

30-00-10 Chapter Organization and Content

The chapters of Part 30 are organized as follows:

• Chapter 30-00 provides a list and summary descriptions of certain environmental laws and Executive Orders, and a list of definitions.

• Chapters 30-10 and 30-20 provide overall Departmental policy with respect to environmental protection and a summary of internal administrative procedures with Departmental organizations must implement.

• Chapter 30-30 provides a general summary of the environmental review process for Departmental activities under the National Environmental Policy Act, and statutes and Executive Orders that require protection and preservation of natural and cultural assets.

• Chapters 30-40 through 30-90 provide detailed requirements for certain environmental statutes and Executive Orders covered by Part 30.

30-00-20 Environmental Statutes and Executive Order

Federal agencies are potentially subject to more than 150 Federal statutes and Executive Orders governing the environment. Many of these laws are noted in Table 1.

Environmental laws and implementing regulations that significantly impact the Department are summarized in the following subsections. Detailed guidance is contained in other chapters of Part 30 for certain environmental statutes and Executive Orders. Table 1, as follows, indicates the location of statutes or Executive Orders that are discussed in Part 30.

Table 1.—Statutes and Executive Orders

Environmental statute or executive order

Citation

Part 30 location

Acid Precipitation Act of 1980

42 U.S.C. §§ 8901 to 8912

Act to Prevent Pollution From Ships

33 U.S.C. §§ 1901 to 1912

Agricultural Act of 1970

16 U.S.C. §§ 1501 to 1510

American Indian Religious Freedom Act

42 U.S.C. § 1996

Antarctic Protection Act of 1990

16 U.S.C. §§ 2461 to 2466

Antiquities Act of 1906

16 U.S.C. §§ 431 to 433

30-00-20K

Archeological and Historic Preservation Act of 1974

16 U.S.C. §§ 469 to 469c-1

30-00-20K

Archeological Resources Protection Act of 1979

16 U.S.C. §§ 470aa to 470mm

Asbestos Hazard Emergency Response Act of 1986

15 U.S.C. §§ 2641 to 2656

Atomic Energy Act of 1954

42 U.S.C. §§ 2011 to 2297g-4

Aviation Safety and Noise Abatement Act of 1979

49 U.S.C. app. §§ 2101 to 2125

Clean Air Act

42 U.S.C. §§ 7401 to 7671q

30-00-20A

Clean Vessel Act of 1992

33 U.S.C. § 1322 note

Clean Water Act [Federal Water, Pollution Control Act]

33 U.S.C. §§ 1251 to 1387

30-00-20B

Coastal Barrier Resources Act

16 U.S.C. §§ 3501 to 3510

Coastal Wetlands Planning, Protection, and Restoration Act

16 U.S.C. §§ 3951 to 3956

Coastal Zone Management Act of 1972

16 U.S.C. §§ 1451 to 1464

30-00-20C; Ch. 30-40

Community Environmental Response Facilitation Act

42 U.S.C. § 9620 note

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [“Superfund”]

42 U.S.C. §§ 9601 to 9675

30-00-20D

Emergency Planning and Community Right-to-Know Act of 1986

42 U.S.C. §§ 11001 to 11050

300-20E; Ch. 30-60

Emergency Wetlands Resources Act of 1986

16 U.S.C. §§ 3901 to 3932

Endangered Species Act of 1973

16 U.S.C. §§ 1531 to 1544

30-00-20F; Ch. 30-40

Energy Policy Act of 1992

42 U.S.C. §§ 13201 to 13556

30-00-20G

Energy Policy and Conservation Act

42 U.S.C. §§ 6201 to 6422

Energy Reorganization Act of 1974

42 U.S.C. §§ 5801 to 5891

Energy Supply and Environmental Coordination Act of 1974

15 U.S.C. §§ 791 to 798

Environmental Programs Assistance Act of 1984

42 U.S.C. § 4368a

Environmental Quality Improvement Act of 1970

42 U.S.C. §§ 4371 to 4375

Farmland Protection Policy Act

7 U.S.C. §§ 4201 to 4209

Federal Facility Compliance Act of 1992

42 U.S.C. §§ 6903, 6908, 6924, 6927, 6939c, 6939d, 6961, 6965

Federal Food, Drug, and Cosmetic Act

21 U.S.C. §§ 301 to 397

Federal Insecticide, Fungicide, and Rodenticide Act

7 U.S.C. §§ 136 to 136y

30-00-20H

Federal Land Policy and Management Act of 1976

43 U.S.C. §§ 1701 to 1784

Federal Oil and Gas Royalty Management Act of 1982

30 U.S.C. §§ 1701 to 1757

Fish and Wildlife Act of 1956

16 U.S.C. §§ 742a to 742d, 742e to 742j-2

Fish and Wildlife Coordination Act

16 U.S.C. §§ 661 to 666c

30-00-201; Ch. 30-40

Flood Disaster Protection Act of 1973

42 U.S.C. §§ 2414 to 4001 to 4129

Forest and Rangeland Renewable Resources Planning Act of 1974

16 U.S.C. §§ 1600 to 1614

Forest and Rangeland Renewable Resources Research Act of 1978

16 U.S.C. §§ 1641 to 1649

Forest Ecosystems and Atmospheric Pollution Research Act of 1988

16 U.S.C. §§ 1642, 1642 note

Geothermal Energy Research, Development and Demonstration Act of 1974

30 U.S.C. §§ 1101 to 1164

Global Change Research Act of 1990

15 U.S.C. §§ 2921 to 2961

Global Climate Protection Act of 1987

15 U.S.C. § 2901 note

Hazardous Substance Response Revenue Act of 1980

26 U.S.C. §§ 4611-4612, 4661-4662

Historic Sites Act of 1935 [Historic Sites, Buildings, and Antiquities Act]

16 U.S.C. §§ 461 to 267

30-00-20J

Indian Environmental General Assistance Program Act of 1992

42 U.S.C. § 4368b

Lead-Based Paint Exposure Reduction Act

15 U.S.C. §§ 2681 to 2692

Lead-Based Paint Poisoning Prevention Act

42 U.S.C. §§ 4821 to 4846

Lead Contamination Control Act of 1988

42 U.S.C. §§ 300j-21 to 300j-26

Low-Level Radioactive Waste Policy Act

42 U.S.C. §§ 2021b to 2021j

Marine Mammal Protection Act of 1972

16 U.S.C. §§ 1361 to 1421h

Marine Protection, Research, and Sanctuaries Act of 1972

16 U.S.C. §§ 1431 to 1445a; 33 U.S.C. §§ 1401 to 1445

30-00-20K; Ch. 30-40

Medical Waste Tracking Act of 1988

42 U.S,.C. §§ 6992 to 6992K

Migratory Bird Treaty Act

16 U.S.C. §§ 703 to 712

Mining and Mineral Resources Research Institute Act of 1984

30 U.S.C. §§ 1221 to 1230a

Multiple-Use Sustained-Yield Act of 1960

16 U.S.C. §§ 528 to 531

National Climate Program Act

15 U.S.C. §§ 2901 to 2908

National Contaminated Sediment Assessment and Management Act

33 U.S.C. § 1271 note

National Environmental Policy Act of 1969

42 U.S.C. § § 4321 to 4370d

30-00-20L; Ch. 30-50

National Forest Management Act of 1976

16 U.S.C. § § 472a, 521b, 1600, 1611 to 1614

National Environmental Education Act

20 U.S.C. §§ 5501 to 5510

National Historic Preservation Act

16 U.S.C. §§ 470 to 470X-6

30-00-20J

Native American Graves Protection & Repatriation Act

25 U.S.C. §§ 3001 to 3013

Noise Control Act of 1972

42 U.S.C. §§ 4901 to 4918

Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990

16 U.S.C. § § 4701 to 4751

Nuclear Waste Policy Act of 1982

42 U.S.C. §§ 10101 to 10270

Occupational Safety and Health Act of 1970

29 U.S.C. §§ 651 to 678

30-00-20M

Ocean Dumping Ban Act of 1988

33 U.S.C. §§ 1412a, 1414a to 1414c

Oil Pollution Act of 1990

33 U.S.C. §§ 2701 to 2761

Organotin Antifouling Paint Control Act of 1988

33 U.S.C. §§ 2401 to 2410

Outer Continental Shelf Lands Act

43 U.S.C. §§ 1331 to 1356

Outer Continental Shelf Lands Act Amendments of 1978

43U.S.C. §§ 1344 to 1356, 1801 to 1866; 30 U.S.C. § 237

Pollution Prevention Act of 1990

42 U.S.C. §§ 13101 to 13109

30-00-20N; Ch. 30-70

Pollution Prosecution Act of 1990

42 U.S.C. § 4321 note

Power Plant and Industrial Fuel Use Act of 1978

42 U.S.C. §§ 8301 to 8483

Refuse Act of 1899

33 U.S.C. § 407

Renewable Resources Extension Act of 1978

16 U.S.C. §§ 1671 to 1676

Residential Lead-Based Paint Hazard Reduction Act of 1992

42 U.S.C. §§ 4851 to 4856

Resource Conservation and Recovery Act of 1976 [Solid Waste Disposal Act]

42 U.S.C. §§ 6901 to 6991i

30-00-20O

Rivers and Harbors Appropriation Acts (Selected sections)

33 U.S.C. §§ 401 to 426p and 441 to 454

Safe Drinking Water Act

42 U.S.C. §§ 300f and 300j-26

30-00-20P; Ch. 30-40

Shore Protection Act of 1988

33 U.S.C. §§ 2601 to 2609, 2621 to 2623

Soil and Water Resources Conservation Act of 1977

16 U.S.C. §§ 2001 to 2009

Surface Mining Control and Reclamation Act of 1977

30 U.S.C. §§ 1201 to 1328

Toxic Substances Control Act

15 U.S.C. §§ 2601 to 2692

30-00-20Q

United States Public Vessel Medical Waste Antidumping Act of 1988

33 U.S.C. §§ 2501 to 2504

Uranium Mill Tailings Radiation Control Act of 1978

42 U.S.C. §§ 7901 to 7942

Water Resources Research Act of 1984

42 U.S.C. §§ 10301 to 10309

Wild and Scenic Rivers Act

16 U.S.C. §§ 1271 to 1287

30-00-20R; Ch. 30-40

Wild bird Conservation Act of 1992

15 U.S.C. §§ 4901 to 4916

Wild Free-Roaming Horses and Burros Act

16 U.S.C. §§ 1331 to 1340

Wilderness Act

16 U.S.C. §§ 1131 to 1136

Wood Residue Utilization Act of 1980

16 U.S.C. §§ 1681 to 1687

Executive Order 13007, Indian Sacred Sites

61 FR 26771 (1996)

Executive Order 12902, Energy Efficiency and Water Conservation at Federal Facilities

59 FR 11463 (1994)

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

59 FR 7629 (1994)

30-00-20S

Executive Order 13101, Greeting the Government Through Waste Prevention, Recycling, and Federal Acquisition

58 FR 54911 (1993)

30-00-20N; Ch. 30-90

Executive Order 12866, Regulatory Planning and Review

58 FR 51735 (1993)

Executive Order 12856, Federal Compliance With Right-to-Know Laws and Pollution Prevention Requirements

58 FR 41981 (1993)

30-00-20E; Ch. 30-80

Executive Order 12852, President's Council on Sustainable Development

58 FR 35841 (1993), as amended by E.O. 12855, 58 FR 39107 (1993); 42 U.S.C. § 4321 note

Executive Order 12845, Requiring Agencies to Purchase Energy-Efficient Computer Equipment

58 FR 21887 (1993)

Executive Order 12844, Federal Use of Alternative Fueled Vehicles

58 FR 21885 (1993)

Executive Order 12843, Procurement Requirements and Policies for Agencies for Ozone-Depleting Substances

58 FR 21881 (1993)

Executive Order 12778, Civil Justice Reform

56 FR 55195 (1991); 28 U.S.C. § 519 note

Executive Order 12777, Implementation of Section 311 of the Federal Water Pollution Control Act of October 18, 1972, as Amended, and the Oil Pollution Act of 1990

56 FR 54757 (1991); 33 U.S.C. § 1321 note

Executive Order 12761, Establishment of President's Environmental and Conservation Challenge Awards

56 FR 23645 (1991); 42 U.S.C. § 4321 note

Executive Order 12759, Federal Energy Management

56 FR 16256 (1991); 42 U.S.C. § 6201 note

Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights

53 FR 8859 (1988); 5 U.S.C. § 601 note

Executive Order 12612, Federalism Considerations in Policy Formulation and Implementation

54 41685 (1987); 5 U.S.C. § 601 note

Executive Order 12580, Superfund Implementation

52 FR 2923 (1987), as amended by E.O. 12777, 56 FR 54757 (1991); 42 U.S.C. §§ 9615 note

Executive Order 12114, Environmental Affects Abroad of Major Federal Actions

44 FR 1957 (1979); 42 U.S.C. § 4321 note

30-00-20M; Ch. 30-50

Executive Order 12088, Federal Compliance With Pollution Control Standards

43 FR 47707 (1978), as amended by E.O. 12580, 52 FR 2923 (1987); 42 U.S.C. § 4321 note

30-00-20T

Executive Order 11990, Protection of Wetlands

42 FR 26961 (1997), as amended by E.O. 12608, 52 FR 34617 (1987); 42 U.S.C. § 4321 note

30-00-20L; Ch. 30-40

Executive Order 11988, Floodplain Management

42 FR 26951 (1977), as amended by E.O. 12148, 44 FR 43239 (1979); 42 U.S.C. § 4321 note

30-00-20L; Ch. 30-40

Executive Order 11987, Exotic Organisms

42 FR 26949 (1977); 42 U.S.C. § 4321 note

30-00-20L

Executive Order 11912, Delegation of Authorities Relating to Energy Policy and Conservation

41 FR 15825 (1976); as amended by E.O. 12003, 42 FR 37523 (1977), E.O. 12038, 43 FR 4957 (1978), E.O. 12148, 44 FR 43239 (1979), E.O. 12375, 47 FR 34105 (1982); 42 U.S.C. § 6201 note

Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act With Respect to Federal Contracts, Grants or Loans

38 FR 25161 (1973); 42 U.S.C. § 7606 note

Executive Order 11644, Use of Off-Road Vehicles on Public Lands

37 FR 2877 (1972), as amended by E.O. 11989, 42 FR 26959 (1977), E.O. 12608, 52 FR 34617 (1987); 42 U.S.C. § 4321 note

Executive Order 11593, Protection and Enhancement of the Cultural Environment

36 FR 8921 (1971); 16 U.S.C. § 470 note

30-00-20J

Executive Order 11514, Protection and Enhancement of Environmental Quality

35 FR 4247 (1970), as amended by E.O. 11991, 42 FR 26967 (1977); 42 U.S.C. § 4321 note

30-00-20L

A.

Clean Air Act (CAA).

The Clean Air Act of 1970, 42 U.S.C. 7401-7671q, as amended, establishes five major programs that cover (1) the attainment and maintenance of air quality standards; (2) reduction of hazardous air pollutants; (3) development of emission standards for motor vehicles and fuels; (4) protection of the stratospheric ozone; and (5) reduction of acid rain deposition.

1.

National Ambient Air Quality Standards Program (NAAQS).

All new and existing sources of air pollution are subject to ambient air quality regulation. The Clean Air Act directs the Environmental Protection Agency (EPA) Administrator to identify pollutants which “may reasonably be anticipated to endanger public health and welfare” and to issue air quality criteria for them. EPA is also required to publish primary and secondary national ambient air quality standards (NAAQS are designed to protect public health with an adequate margin of safety, and secondary NAAQS are designed to protect the public welfare. In 40 CFR part 50, EPA has promulgated NAAQS for six pollutants: sulfur dioxide (SO

2

), particulate matter, nitrogen dioxide (NO

2

), carbon monoxide, ozone, and lead.

Each State and eligible tribe is given primary responsibility for assuring that air quality within its borders is maintained at a level consistent with the NAAQS. The NAAQS are implemented through source-specific emission limitations established by States in State Implementation Plans (SIPs). SIPs must meet minimum criteria set forth in the Clean Air Act and are reviewed by EPA. A SIP may be enforced by the State or EPA. EPA must promulgate a Federal Implementation Plan (FIP) if a State fails to make a required submission or if a SIPs submission is disapproved and the State does not remedy the deficiency within a specified period.

(a)

Nonattainment Areas.

SIPs must adopt, at a minimum, reasonably available control technology (RACT) for existing sources and provide for annual incremental reductions in emissions of nonattainment pollutants. The CAA also contains additional requirements for SIPs in areas that do not attain the NAAQS, including specific requirements for certain pollutants.

(b)

New Source Performance Standards (NSPS).

New sources of pollution are subject to more stringent control technology and permitting requirements than existing sources. EPA is authorized to establish new source performance standards, which impose Federal technology-based requirements on emissions from new or modified major stationary sources of pollution. The Clean Air Act directs EPA to establish standards for new sources that reflect the degree of emission limitation achievable through the application of the best system of emission reduction which the EPA Administrator determines has been adequately demonstrated to be the best. These standards may be promulgated as design equipment, work practice, or operational standards where numerical emission limitations are not feasible. EPA has developed NSPS standards for a new of industry categories which are published at 40 CFR part 60. Each NSPS identifies the types of facilities to which the standards apply.

(c)

Prevention of Significant Deterioration Program (PSD).

A permit must be obtained under the PSD program before a “major” new source may be constructed or “major modification” made to an existing major source in an area that attains the NAAQS or is designated unclassifiable. The CAA requires each SIP to “contain emission limitations and such other measures as may be necessary * * * to prevent significant deterioration of air quality” in each region of the state in which the air quality exceeds national standards. EPA's PSD regulations are codified at 40 CFR part 51.

(d)

Nonattainment Program.

Regions that have failed to meet the NAAQS for one or more criteria pollutants are designated as “nonattainment” areas. New or modified major stationary sources proposed for nonattainment areas are required to comply with stringent permitting requirements, including a showing that the decrease in emissions from existing sources in the area is sufficient to offset the increase in emissions from the new or modified source and achievement of the “lowest achievable emission rate” (LAER).

2.

National Emission Standards for Hazardous Air Pollutants (NESHAP).

The 1970 Clean Air Act authorized EPA to establish health-based national emission standards for hazardous air pollutants (NESHAP) to protect the

public from these pollutants. EPA has established standards for seven hazardous substances. EPA's NESHAP regulations are published at 40 CFR part 651. The 1990 CAA amendments direct EPA to establish technology-based standards for 189 hazardous substances based on the use of “maximum achievable control technology” (MACT).

3.

Emission Standards for Mobile Sources and Fuel-Related Programs.

EPA is authorized to establish allowable levels of auto emissions and to control fuels and fuel additives. The 1990 CAA amendments establish lower emission standards for automobiles and other vehicles and provide for the use of “clean” alternatives fuels and “clean fuel” vehicles.

4.

Stratospheric Ozone Protection.

Title VI of the Act, added in 1990, addresses scientific concerns related to stratospheric ozone depletion and global warming by providing for the phase-out of ozone-depleting substances. Title VI calls for the phase-out of most ozone-depleting substances by the year 2000 and the imposition of other controls designed to minimize the emissions of such substances prior to their elimination.

5.

Acidic Deposition.

The 1990 CAA amendments added Title IV of the Act which authorizes EPA to establish an acid rain program to reduce the adverse effects of acidic deposition. The program imposes sulphur dioxide (SO

2

) and nitrogen oxide (NO

X

) controls on existing and new electric utility plants.

6.

Permits.

The 1990 CAA amendments added Title V which establishes an operating permit program for existing stationary sources. The permit program is modeled on the Clean Water Act permit program (NPDES program—see 30-00-20B) Each State must develop and implement a Clean Air Act operating permit program. EPA is required to issue permit program regulations that are to be followed by the States in establishing their programs; approve each State's permit program; and establish a Federal permit program if a State fails to implement an approved program. EPA is also authorized to review each permit issued by a State. EPA regulations addressing the minimum requirements for State operating permit programs are contained in 40 CFR part 70.

7.

Civil and Criminal Penalties.

EPA is authorized to seek compliance with the Act's provisions through administrative, civil, and criminal enforcement sanctions. The maximum penalties that may be imposed for violation of the CAA are contained in Table 2.

Table

.—Maximum Penalties for Violation of Clean Air Act 42 U.S.C. § 7413

(b)-(d).

Violation

Administrative penalty

Civil penalty

Criminal penalty

Violation of CAA requirement

$25,000 per day (maximum $200,000 may be waived by EPA and DOJ jointly). Alternative: recovery of projected economic value of noncompliance

$25,000 per violation

Up to $250,000 per day and/or up to 5 yrs. imprisonment. Corporation subject to $500,000 per violation. Penalty doubled after first offense.

“Field citation” for minor violations

$5,000 per day

False statement or failure to file or maintain records or reports

Up to $250,000 and/or up to 2 yrs. imprisonment; $500,000 for corporation. Penalty doubled after first offense.

Knowing failure to pay fee

Up to $250,000 and/or up to 1 yr. imprisonment; $1 million per day for corporations. Penalty doubled after first offense.

Knowing release of HAP or “extremely hazardous substance” placing another in “imminent danger of death or serious bodily injury”

Up to $25,000 per day and/or up to 15 yrs. imprisonment; $1 million per day for corporations. Penalty doubled after first offense.

Negligent release of air toxic placing another in “imminent danger or death of serious bodily injury”

Up to $100,000 and/or up to 1 yr. imprisonment; corporations subject to $200,000. Penalty doubled after first offense.

B.

Clean Water Act (CWA).

The Clean Water Act, 33 U.S.C. 1251-1387, was originally enacted as the Federal Water Pollution Control Act of 1972. The Act was substantially amended in 1977 and became the Clean Water Act. The objective of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation's waters.” The Act establishes as a national policy “that the discharge of toxic pollutants in toxic amounts be prohibited.” Among the goals established by the Act are achievement of a level of water quality which “provides for the protection and propagation of fish, shellfish and wildlife * * * [and] * * * for recreation in and on the water” and elimination of the discharge of pollutants into navigable waters.

The CWA prohibits “the discharge of any pollutant by any person * * *” from a point source to waters of the United States, except in accordance with the Act's permit requirements, effluent limitations, and other provisions.

1.

Water Quality Standards.

A water quality standard defines the water quality goals of a water body by designating the uses to be made of the water, by setting criteria necessary to protect the uses, and by setting anti-degradation policy. States and eligible tribes are responsible for establishing water quality standards. The standards are designed to protect public health or welfare, enhance the quality of water, and serve the other purposes of the Clean Water Act. States and eligible tribes are required to review their water quality standards at least once every three years. EPA reviews and approves or disapproves State/Tribe-adopted water quality standards in accordance with regulations codified at 40 CFR part 131.

(a)

Water Uses.

Each State and eligible tribe must specify appropriate water uses to be achieved and protected. The

classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.

(b)

Water Quality Criteria.

States and eligible tribes must adopt those water quality criteria that protect the designated use. Criteria are elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.

(c)

Toxic Pollutants.

The Water Quality Act of 1987 amended the CWA to require States and eligible tribes to identify those waters that are adversely affected by toxic, conventional, and nonconventional pollutants; to identify where additional controls are needed; and to prepare individual control strategies. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use, or where the levels of toxic pollutants are at a level to warrant concern, and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use.

2.

Effluent Limitations.

The CWA directs EPA to issue effluent limitation guidelines, pretreatment standards, and new source performance standards for industrial dischargers. The EPA implementing regulations are based principally on the degree of effluent reduction attainable through the application of control technologies.

(a)

Direct Dischargers.

The effluent guidelines promulgated by EPA reflect the several levels of regulatory stringency specified in the Act, and they also focus on different types of pollutants.

(i)

Best Practicable Control Technology (BPT).

The CWA directs the achievement of effluent limitations requiring application of Best Practicable Control Technology (BPT). In general, effluent limitations that are based on Best Practicable Control Technology (BPT) represent the average of the best treatment technology performance for an industrial category.

(ii)

Conventional Pollutants—Best Conventional Pollutant Control Practical Technology (BCT).

For conventional pollutants listed in the Act, the CWA directs the achievement of effluent limitations based on the performance of best conventional pollutant control technology (BCT).

(iii)

Toxic Pollutants—Best Available Technology (BAT).

For the toxic pollutants listed in the CWA and for nonconventional pollutants, the Act directs the achievement of effluent limitations requiring application of Best Available Technology Economically Achievable (BAT). Effluent limitations based on BAT are to represent at a minimum the best control technology performance in the industrial category that is technologically and economically achievable.

(iv)

New Source Performance Standards (NSPS).

In addition to limitations for existing direct dischargers, EPA has established New Source Performance Standards (NSPS) for new direct dischargers. NSPS limitations must be as stringent, or more stringent, than BAT limitations for existing sources within the industry category or subcategory.

(v)

National Pollutant Discharge Elimination (NPDES) Permit.

The limitations and standards for direct dischargers are implemented in permits issued through the National Pollutant Discharge Elimination System (NPDES). Where there are no effluent guidelines or standards, technology-based limitations reflecting BPT/BCT/BAT are developed on a case-by-case basis using the permit writer's best professional judgement. Any NPDES permit issued must contain limitations sufficiently stringent to assure compliance with water quality standards.

(b)

Indirect Dischargers.

(l)

Conventional Pollutants.

In general, EPA does not develop regulations to control conventional pollutants discharged by indirect dischargers because the publicly-owned treatment works (POTWs) receiving those wastes normally provide adequate treatment of these types of pollutants or they can be adequately controlled through local pretreatment limits.

(ii)

Pretreatment Standards.

Indirect dischargers are regulated by the general pretreatment regulations (40 CFR part 403), local discharge limits developed pursuant to Part 403, and categorical pretreatment standards for new and existing sources covering specific industrial categories. These categorical standards apply to the discharge of pollutants from non-domestic sources which interfere with or pass through POTWs, and are enforced by POTWs or by State or Federal authorities. The categorical pretreatment standards for existing sources covering specific industries are generally analogous to the BAT limitations imposed on direct dischargers. The standards for new sources are generally analogous to NSPS.

3.

National Pollutant Discharge Elimination System (NPDES) Permit.

(a)

Requirement.

The CWA states that a permit is required for the discharge of pollutants from a point source into waters of the United States. Under the NPDES, permits are required whenever a pollutant is: (1) discharged (2) by a person (3) from a point source (4) into navigable waters of the United States.

(b)

Waters of the United States.

The Clean Water Act applies to “navigable water”, which are in turn defined as “waters of the United States, including the territorial seas.” (33 U.S.C. 1362(7)). Navigable waters are broadly defined and are not limited to “navigability in fact”. Waters of the United States include interstate waters and wetlands; all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce; all impoundments of waters; tributaries; the territorial seas; and wetlands adjacent to other waters of the United States. (33 CFR 328.3(a)). Section 401(a)(1) of the CAA requires that prior to the issuance of any Federal license or permit for an activity which may result in a discharge to navigable waters, the applicant must obtain certification (from the State in which the discharge will occur) that the licensee will assure compliance with applicable portions of the CAA.

(c)

Storm Water Discharges.

Section 402(p) of the CWA clarifies that storm water discharges associated with industrial activity, including construction activity, to waters of the United States must be authorized by a NPDES permit. This section also regulates storm water discharges from municipal separate storm sewer systems serving a population greater than 100,000, and those storm water discharges designated for permitting a “significant contributor of pollution.” The CWA requires EPA to issue regulations establishing general permit standards for industrial storm water dischargers. Facility operators have to file notices of intent to be covered by the general permit and are required to develop pollution prevention plans to keep contaminants out of storm water. The general permits also establish special requirements for facilities that are subject to the Emergency Planning and Community Right-To-Know Act (EPCRA) section 313 reporting (see Chapters 30-60 and 30-80). The

regulations are codified at 40 CFR 122.26.

(d)

Recordkeeping and Monitoring.

The NPDES permits require holders to keep updated records and to install and maintain monitoring equipment, to take samples of effluents, and to report their findings to the EPA. The results must be in the form of a discharge monitoring report, which is a uniform method devised by the EPA for self-monitoring of permitted facilities.

4.

Spills of Oil and Hazardous Substances.

Under section 311, spills of listed hazardous substances in “Reportable Quantities” established by regulation must be reported to the National Response Center and promptly cleaned up. See 40 CFR parts 116-117 for designations of hazardous substances and reportable quantities. Spill Prevention Control and Countermeasure (SPCC) Plans must be adopted so as to prevent discharge of oil from onshore and offshore facilities into the navigable waters or adjoining shores. Requirements are set forth at 40 CFR part 112.

5.

Sole Source Aquifer Designation.

This designation is intended under 42 U.S.C. 300h-3 to protect underground drinking water sources. Proposed Federal financially-assisted projects that have the potential to contaminate the designated sole source aquifer are subject to EPA review.

6.

Civil and Criminal Penalties.

Administrative, civil, or criminal penalties may be imposed by EPA or a federal court for violation of the Act.

C.

Coastal Zone Management Act (CZMA).

The Coastal zone Management Act, 16 U.S.C. 1451 to 1464, requires that Federal activities in coastal areas be consistent with approved State Coastal Zone Management Programs, to the maximum extent possible. Procedures for consistency determinations under the CZMA requirements are codified at 15 CFR part 930 and are described in Chapter 30-40.

D.

Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA).

The Comprehensive Environmental, Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9601 to 9675, is popularly known as the “Superfund” Act. The statute provides for a fund to address the problems of “cleaning up” abandoned or leaking hazardous waste sites. The 1980 statute was substantially revised in 1986 by the Superfund Amendments and Reauthorization Act of 1986 (SARA). It is implemented for federal agencies by Executive order 12580.

CERCLA authorizes the Environmental Protection Agency (EPA) to:

•-Utilize the Hazardous Substance Superfund (“Superfund”) to study and clean up sites that are listed on the National Priorities List (NPL);

• To recover costs expended from parties responsible; and,

• To order such parties to perform work.

1.

Hazardous Substance Superfund.

The Hazardous Substance Superfund is established through the imposition of taxes on certain industries and from general tax revenues. The Superfund is used to pay EPA's clean-up and enforcement costs, natural resource damage, and claims of private parties. Federal agencies are not eligible for funds from the Superfund.

2.

National Contingency Plan (NCP).

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) provides the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants. The NCP is required by CERCLA section 105 and section 311(c)(2) of the CWA. In Executive Order 12580, 52 FR 2923 (1987), the President delegated to EPA the responsibility for the amendment of the NCP.

National Priorities List (NPL).

CERCLA requires that the NCP include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the Untied States. The National Priorities List (NPL) constitutes this list. The identification of a site for the NPL is intended primarily to guide the Environmental Protection Agency (EPA) in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA has promulgate a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the Untied States. That list, which is Appendix B of 40 CFR part 300, is the National Priorities List (“NPL”).

The NPL includes two sections, one of sites that are evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites being addressed by other Federal agencies (the “Federal Facilities Section”).

Federal Facilities.

Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System (HRS) score and determining whether the facility is placed on the NPL. The HRS is a screening tool used by the EPA to evaluate risks associated with abandoned or uncontrolled or hazardous waste sites. EPA is not the lead agency at these sites, and its role at such sites is accordingly less extensive than at other sites. The Federal Facilities Section includes those facilities at which EPA is not the lead agency.

3.

Response and Remediation.

Sections 106 and 107 provide the primary authority for EPA, States, and private parties to recover the costs of cleanup or to abate an endangerment to public heath, welfare, or the environment. Section 106 authorizes EPA to seek judicial relief requiring a responsible party to abate an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility. Section 107 imposes liability for cleanup and other response costs [costs incurred in responding to a release or a threatened release of a hazardous substance] upon (1) a “responsible party” for the (2) release or “threatened release” of (3) a hazardous substance from (4) a facility or vessel.

(a)

Potentially Responsible Party.

Section 107(a) of CERCLA, 42 U.S.C 9607(a), sets forth four categories of parties that are potentially subject to liability:

(1)

Current owner or operator:

owner or operator of a facility from which there is a release of a hazardous substance, or is the operator or owner when cleanup is performed or litigation initiated;

(2)

Former owner or operator:

A person who operated or owned a facility when the hazardous substance was disposed of at the facility;

(3)

Arranger:

Any person who “arranged for disposal or treatment” at a facility; and

(4)

Transporter:

A person who accepted hazardous substances for transport to a disposal or treatment facility or site that was selected by the transporter “from which there is a release or threatened release.” (107(a)(4).

Note:

A current owner or operator may be liable even if it did not handle, dispose of, or tread hazardous wastes at the facility, and without regard to whether hazardous substances were disposed of at the facility during the period of ownership or operation.

(b)

Release or “Substantial Threat of Release.”

The term “release” is defined broadly in the Act. A “release” any spilling, leaking, pumping, pouring emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment * * *” The release of any quantity of a hazardous substance qualifies as a release under CERCLA. Certain types of releases are excluded from the definition: Engine exhaust, nuclear material and fertilizer application. 42 U.S.C. 9601(22).

(c)

Hazardous Substance.

“Hazardous substances” are defined in CERCLA section 101(14). A list of these substances can be found at 40 CFR part 302. The definition of “hazardous substances” incorporates lists of hazardous pollutants that have been developed under other Federal environmental statutes and wastes that exhibit characteristics of a hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). Table 3, following, outlines hazardous pollutants considered to be hazardous substances under CERCLA.

Table 3.—Hazardous Pollutants Considered To Be Hazardous Substances Under CERCLA

Type of pollutant

Statutory definition

Hazardous Air Pollutants

CAA, Section 112.

Hazardous Substances

CWA, Section 311.

Toxic Pollutants

CWA, Section 307.

Substances which “may present substantial danger to public health or welfare or the environment”

CERCLA, Section 102.

Listed Hazardous Wastes; Characteristic hazardous wastes

RCRA, Section 3001.

Imminently Hazardous Chemical Substances or Mixtures

TSCA, Section 7.

(1)

Petroleum Exclusion.

Petroleum, “including crude oil or any fraction thereof,” is excluded from the definition of “hazardous substance.”

(2)

Pollutants or Contaminants.”

EPA may clean up a site polluted by either a “hazardous substance” or a “pollutant or contaminant,” but CERCLA does not authorize EPA to recover its cleanup costs from private parties or to issue an order directing the parties to perform a cleanup when the substance involved is only a “pollutant or contaminant.”

(d)

Response Costs.

CERCLA permits the recovery of “response costs”, which includes the costs of removal, remedial action, and enforcement activities related thereto. In addition to liability for costs and damages related to response actions stemming from a release of a hazardous substance, liability may also be imposed for costs associated with the loss of a contaminated area's natural resources.

(e)

Application of Liability.

The statute does not set forth liability standards. The courts have consistently applie the following standards:

(1)

Strict liability;

(2)

Joint and Several Liability;

and

(3)

Retroactive Liability.

(f)

Defense to Liability.

The statute permits liability to be defended when the release was caused by:

(1) An act of God;

(2) An act of war; or

(3) The act or omission of a third party other than an employee or agent or one in a contractual relationship with the party being sought to be held liable.

4.

Penalties.

A party that refuses or fails to comply with a Section 106 order from EPA may be assessed up to $25,000 per day of the violation of the order. Additional penalties may also be imposed.

5.

Executive Order 12580.

Executive Order 12580, Superfund Implementation, 52 FR 2923 (1987), as amended by Executive Order 12777, 56 FR 54757 (1991), 42 U.S.C. 9615 note, implements CERCLA by delegating functions under the Act vested in the President to Federal agencies.

E.

Emergency Planning and Community Right-To-Know Act (EPCRA)

1.

EPCRA.

The Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U.S.C. 11001-11050, establishes a mechanism for providing the public with important information on the hazardous and toxic chemicals in their communities, and it creates emergency planning and notification requirements to protect the public in the event of a release of extremely hazardous substances. The Act requires owners and operators of certain facilities to annually submit toxic chemical release inventories to EPA, affected States, and Indian tribes. EPCRA requirements are set forth in chapter 30-60. Because it was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), the statute is sometimes referred to as “SARA, Title III”

2.

Executive Order 12856.

Executive Order 12856, Federal Compliance With Right-to-Know Laws and Pollution Prevention Requirements, 58 FR 41981 (1993), applies the requirements of EPCRA to Federal agencies. The requirements of the Order are described in chapter 30-80.

F.

Endangered Species Act (ESA).

The Endangered Species Act, 16 U.S.C. 1531-1543, directs Federal agencies to conserve endangered and threatened species and their critical habitats. Federal agencies must insure, in consultation with the Secretary of the Interior or the Secretary of Commerce, that any action authorized, funded, or carried our by the agency is not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of critical habitat unless the agency has been granted an exemption under ESA. Environmental review requirements under ESA are covered in chapter 30-40.

G.

Energy Conservation.

1.

Energy Policy Act.

The Energy Policy Act of 1992, 42 U.S.C. 13201 to 13556, requires the Secretary of Energy to work with other Federal agencies to significantly reduce the use of energy and reduce the related environmental impacts by promoting use of energy efficient and renewable energy technologies.

2.

Energy Policy and Conservation Act.

The Energy Policy and Conservation Act, 42 U.S.C. 6201-6422, authorizes the Secretary of Energy to promote energy efficiency and encourage energy conservation.

3.

Executive Order 12902.

Executive Order 12902, Energy Efficiency and Water Conservation at Federal Facilities, 59 FR 11463 (1994), requires each federal agency to develop and implement a program with the intent of reducing energy consumption by 30 percent by the year 2005. Each agency must develop and implement a program for its industrial facilities with the intent of increasing energy efficiency by at least 20 percent by the year 2005 and shall implement all cost-effective water conservation projects.

The Order directs each agency responsible for managing Federal facilities to develop and begin implementing a 10-year plan to conduct or obtain comprehensive facility audits, based on prioritization surveys on each of the facilities the agency manages. All agencies are to develop and implement programs to reduce the use of petroleum in their buildings and facilities by switching to a less-polluting and

nonpetroleum-based energy source, such as natural gas or solar and other renewable energy sources. The head of each agency shall report annually to the Secretary of Energy and OMB in achieving the goals of this order. Each agency head shall designate a senior official, at the Assistant Secretary level or above, to be responsible for achieving the requirements of Executive Order 12902. The agency senior official must coordinate implementation of the Order with the Federal Environmental Executive and Agency Environmental Executives established under Executive Order No. 12873 (see Chapter 30-90).

H.

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 to 136y, requires the registration of a pesticide before it may be sold and authorizes the EPA Administrator to limit the distribution, sale or use of unregistered pesticides. EPA is prohibited from registering a pesticide that will cause “unreasonable adverse effects on the environment.” Regulations implementing FIFRA govern the use, storage, and disposal of registered pesticides. Additionally, these regulations govern the requirements for training and certification of applicators, container labeling, and worker protection.

I.

Fish and Wildlife Coordination Act.

The Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, requires Federal agencies to protect fish and wildlife resources which may be affected by an agency plan to control or modify a national stream or body of water for any purpose. The agency also must provide for the development and improvement of wildlife resources that will be affected by its action. Before taking action, the agency must consult with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the State agency exercising administration over the wildlife resources that will be affected to determine means and measures that should be adopted to prevent the loss of or damage to such wildlife resources, as well as to provide concurrently for the development and improvement of such resources. Consultation requirements under the Fish and Wildlife Coordination Act are described in chapter 30-40.

J.

Historic Preservation.

1.

Antiquities Act of 1906.

he Antiquities Act of 1906, 16 U.S.C. 431-433, authorizes the President to declare historic landmarks, historic and pre-historic structures, and other objects of historic and scientific interest that are located on Federal lands to be national monuments.

2.

Archaeological and Historic Preservation Act of 1974.

The Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 to 469c-1, directs Federal agencies to preserve significant scientific, prehistorical, historical and archaeological data.

3.

Historic Sites Act of 1935.

The Historic Sites Act of 1935, 16 U.S.C. 461 to 467, states that it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the public. The Act is also popularly called “The Historic Sites, Buildings, and Antiquities Act.”

4.

National Historic Preservation Act.

The National Historic Preservation Act, 16 U.S.C. 470 to 470x-6, directs heads of Federal agencies to assume responsibility for the preservation of historic properties which are owned or controlled by such agencies.

5.

Executive Order 11593.

Executive Order 11593, Protection and Enhancement of the Cultural Environment, 36 FR 8921 (1971), 16 U.S.C. 470 note, requires Federal agencies to initiate measures and procedures to provide for the maintenance, through preservation, rehabilitation, or restoration of Federally-owned sites that are listed on the National Register of Historic Places.

K.

Marine Protection, Research and Sanctuaries Act.

The Marine Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 to 1445a, 33 U.S.C. 1401 to 1445, provides for establishment of marine sanctuaries and directs Federal agencies to ensure that their actions are consistent with the intended use of such areas.

L.

National Environmental Policy Act (NEPA).

1.

NEPA.

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370d, establishes a comprehensive policy for protection and enhancement of the environment by the Federal government; creates the Council on Environmental Quality; and directs Federal agencies to carry out the policies and procedures of the act. NEPA is covered in chapter 30-50.

2.

Executive Order 12114.

Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, 44 FR 1957 (1979), enables responsible officials of Federal agencies having ultimate responsibility for authorizing and approving certain Federal activities significantly affecting the environment of the global commons, or a foreign nation, or certain major Federal actions outside the United States which significantly affect natural or ecological resources of global importance, to be informed of pertinent environmental considerations and to take such considerations into account in making decisions regarding such actions. Executive Order 12114 is implemented for HHS in chapter 30-50.

3.

Executive Order 11990.

Executive Order 11990, Protection of Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52 FR 34617 (1987) 42 U.S.C. 4321 note, directs Federal agencies to avoid, to the extent possible, the long and short term adverse impacts associated with the destruction or modification of wetlands and direct or indirect support of new construction in wetlands wherever there is a practical alternative. Executive Order 11990 is covered in chapter 30-40.

4.

Executive Order 11988.

Executive Order 11988, Floodplain Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979), 42 U.S.C. 4321 note, directs Federal agencies to take action to avoid, to the extent possible, the long and short term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development whenever there is a practical alternative. Executive Order 11988 is implemented for HHS in chapter 30-40.

5.

Executive Order 11514.

Executive Order 11514, Protection and Enhancement of Environmental Quality, 35 FR 4247 (1970), as amended by Executive Order 11991, 42 FR 26967 (1977), 42 U.S.C. 4321 note, requires Federal agencies to initiate measures needed to direct their policies, plans, and programs to meet national environmental goals. Federal agencies must develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. In carrying out their responsibilities under NEPA and Executive Order 11514, Federal agencies are to comply with regulations issued by the Council on Environmental Quality, except where compliance would be inconsistent with statutory requirements.

M.

Occupational Safety and Health Act (OSHA).

The Occupational Safety and Health Act of 1970, 29 U.S.C 651 to 658, regulates the use, storage, and handling of hazardous materials in the workplace and provides for the Department of Labor to establish standards governing workplace safety and health requirements.

N.

Pollution Prevention and Recycling

1.

Pollution Prevention Act (PPA).

The Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109, requires the reporting of efforts to reduce toxic chemical releases through source reduction and recycling. The PPA establishes national policy that pollution is to be prevented or reduced at the source, and the Act requires the Environmental Protection Agency (EPA) to submit biennial reports to Congress that analyze the source reduction and recycling data submitted to it and provide other pollution prevention information that has been gathered from private businesses and Federal agencies. The Act also requires the Administrator of EPA to develop a strategy to promote source reduction; to make matching grants to States to promote the use of source reduction techniques by businesses; and to establish a Source Reduction Clearinghouse. The requirements of the PPA are described in more detail in chapter 30-70.

2.

Executive Order 13101.

Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, Sep 1998, requires Federal agencies to strive to increase the procurement of products that are environmentally preferable or that are made with recovered materials and to set annual goals to maximize the number of recycled products purchased, relative to non-recycled alternatives. Each agency is to establish goals for solid waste prevention and for recycling to be achieved by the years 2000, 2005 and 2010 and to annually report progress in attaining the goals. Executive Order 13101 is implemented for HHS in chapter 30-90.

O.

Resource Conservation and Recovery Act (RCRA).

The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 to 6991i, governs the generation, storage, and disposal of hazardous waste, and amends the Solid Waste Disposal Act.

P.

Safe Drinking Waster Act (SDWA).

The Safe Drinking Water Act, 42 U.S.C. 300f to 33j-26, is intended to protect drinking water sources. The statute authorizes EPA to determine if an action which will have an environmental effect on a sole or principal drinking water source would also constitute a significant hazard to a human population and, if so, to prohibit such an action. The SDWA protects the quality of drinking water by establishing regulations (1) governing the quality of water delivered by public water systems and (2) preventing the endangerment of drinking water sources from underground injection. The SDWA also allows EPA to take any action necessary to protect the health of persons where contamination of a drinking water source poses an imminent and substantial endangerment to health.

Q.

Toxic Substances Control Act (TSCA).

The Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. 2601 to 2692, provides controls over the manufacture process, use, distribution and disposal of certain toxic materials.

e.g.,

polychlorinated biphenyls, lead-based paint, asbestos containing materials and radon.

R.

Wild and Scenic Rivers Act.

The Wild and Scenic Rivers Act, 16 U.S.C. 1271 to 1287, directs Federal agencies to consider and preserve the values of wild and scenic areas in the use and development of water and land resources.

S.

Executive Orders

1.

Executive Order 12898.

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (1994), requires each Federal agency to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Federal agencies which conduct activities that substantially affect human health or the environment should have implemented an agency-wide environmental justice strategy which identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

The environmental justice strategy includes a listing of programs, policies, planning and public participation processes, enforcement, and/or rulemakings, related to human health or the environment and should, at a minimum: (a) Promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations; (b) ensure greater public participation; (c) improve research and data collection relating to the health of and environment of minority populations and low-income populations; and (d) identify differential patterns of consumption of natural resources among minority populations and low-income populations. In addition, the environmental justice strategy includes, where appropriate, a timetable for undertaking identified revisions and consideration of economic and social implications of the revisions. To assist in identifying the need for ensuring protection of populations with differential consumption patterns, agencies whenever practicable and appropriate, must collect, maintain, and analyze information on the consumption patterns of populations who rely principally on fish and/or wildlife for subsistence.

2.

Executive Order 12088.

Executive Order 12088, Federal Compliance with Pollution Control Standards, 43 FR 47707 (1978), as amended by Executive Order 12580, 52 FR 2923 (1987), 42 U.S.C. 4321 note, makes the head of each Federal agency responsible for ensuring that all necessary actions are taken for the prevention, control, and abatement of environmental pollution with respect to Federal facilities and activities under the control of the agency.

3.

Executive Order 11987.

Executive Order 11987, Exotic Organisms, 42 FR 25949, 42 U.S.C. 4321 note, directs Federal agencies, to the extent permitted by law, to restrict the introduction of exotic species into the natural ecosystems on lands and waters which they own, lease, or administer.

30-00-30 Definitions

The following terms are defined solely for the purpose of implementing the supplemental procedures provided by this chapter and are not necessarily applicable to any statutory or regulatory requirements. To the extent that a definition of one of these terms should conflict with a definition in an applicable statute, regulation or Executive Order, that statute, regulation or Executive Order definition shall supersede the GAM definition.

A.

Action

—a signed decision by a responsible Department official resulting in:

1. Approval, award, modification, cancellation, termination, use or commitment of Federal funds or property by means of a grant, contract, purchase, loan, guarantee, deed, lease, license or by any other means;

2. Approval, amendment or revocation of any official policy, procedures or regulations including the establishment or elimination of a Department program; or

3. Submission to Congress of proposed legislation which, if enacted, the Department would administer.

B.

Asset

—an entity, group of entities or specific environment as defined in the individual related acts and which the individual related acts seek to protect or preserve. Assets include cultural assets (e.g., historic properties) and natural assets (e.g., wild and scenic rivers, and endangered species).

C.

Environmental Acts

—all authorities listed in Section 30-00-20 or authorities that might be designated under other statutes or Executive Orders.

D.

Environmental Assessment

—a concise public document, as defined in the regulations implementing NEPA, that serves to provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

Environmental Effects

—effects, as defined under NEPA, include direct effects, which are caused by the action and occur at the same time and place, indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable, and cumulative effects, which are caused by the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.

F.

Environmental Impact Statement

—a detailed written statement, as required under NEPA, on: (1) The environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided if the action is 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 productivity and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

G.

Environmental Review

—the process, including necessary documentation, which a Departmental organization uses to determine whether a proposed action will cause an environmental affect.

H.

Finding of No Significant Impact

—a document by a federal agency, as required under NEPA, briefly presenting the reasons why an action will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.

I.

Major Federal Action

—includes actions, as defined by NEPA, with effects that may be major and which are potentially subject to federal court and responsibility.

J.

HHS Operating Division (OPDIV)

The following is a current listing (which may change at some future date) of OPDIVs: Administration of Aging (AoA), Administration for Children and Families (ACF) Agency for Health Care Research and Quality (AHCRQ), Centers for Disease Control and Prevention (CDC), Agency for Toxic Substances and Disease Registry (ATSDR), Food and Drug Administration (FDA), Health Care Financing Administration (HCFA), Health Resources and Services Administration (HRSA), Indian Health Service (IHS), National Institutes of Health (NIH), Office of the Secretary (OS), Program Support Center (PSC), and Substance Abuse and Mental Health Services Administration (SAMHSA).

K.

HHS Staff Division (STAFFDIV)

The following is a current listing (which may change at some future date) of STAFFDIVs: Office of the Assistant Secretary for Legislation (ASL), Office of the Assistant Secretary for Management and Budget (ASMB), Office of the Assistant Secretary for Planning and Evaluation (ASPE), Office of the Assistant Secretary for Public Affairs (ASPA), Departmental Appeals Board (DAB), Office for Civil Rights (OCR), Office of General Counsel (OGC), Office of Inspector General (OIG), and Office of Public Health and Sciences (OPHS).

L.

Program Review

—a review by OPDIVs/STAFFDIVs of all their actions to determine:

1. Those categories of actions which normally do not individually or cumulatively cause significant environmental effects and therefore may be categorically excluded from further environmental review; and

2. Those categories of actions which require an environmental review because they may cause significant environmental effects under NEPA; and

3. Those categories of actions which require an environmental review because they normally do cause significant environmental effects under NEPA.

Subject: Department of Health and Human Services Environmental Policy

30-10-00 Policy Statement

30-10-10 Vision statement

30-10-20 Goals and Objectives

30-10-30 Strategy

30-10-00 Policy Statement

The Department of Health and Human Services is committed to complying with all applicable Federal, state and local environmental laws, statutes and regulations, protecting the environment, and conserving our environmental resources by being proactive and cost effective in our environmental stewardship. It is HHS policy that pollution be prevented or reduced at the source. All HHS organizations shall give first priority to avoiding or reducing the generation of hazardous substances, pollutants, and contaminants at the source. Pollution that cannot be prevented or recycled must be treated in an environmentally safe manner to reduce volume, toxicity, and/or mobility.

Only as a last resort should disposal or other release into the environment be employed, and such disposal or release must be conducted in accordance with all applicable authorities and in an environmentally safe manner. Managers and employees are expected to execute their responsibilities in a way that is proactive and cost effective in the protection and conservation of our environmental resources and in a manner that complies with all applicable Federal, state, and local environmental laws, statutes and regulations.

30-10-10 Vision Statement

All HHS managers and employees are guardians of the environment when carrying out their responsibilities. Proactive efforts at all organizational levels must be focused on managing environmental risks to ensure that the environment is always protected and our environmental resources are conserved.

OPDIVs/STAFFDIVs must give weight to preservation of the environment and protection of historic or cultural assets in reaching substantive program decisions. All HHS organizations shall assess environmental costs and benefits as well as program goals and objectives in determining a particular course of action. In conducting this assessment, OPDIVs/STAFFDIVs should devote reasonable time, effort, and resources to consideration of environmental risks associated with a program-related course of action.

30-10-20 Goals and Objectives

The goals of our environmental efforts are to prevent harm to the environment, and enhance the quality of human health by conserving our environmental resources.

This goal are satisfied by meeting the following objectives:

1. Compliance—To comply with all applicable Federal, state, and local environmental laws, statutes and regulations:

2. Conservation—To protect and conserve our environmental resources through pollution prevention, waste reduction and recycling;

3. Pollution Prevention—To protect and conserve our environmental resources through source reduction in facility management and acquisition, where practicable, as the primary means of achieving and maintaining compliance with applicable Federal, state and local environmental laws, statutes and regulations; and

4. Restoration—To restore, when possible, facilities, land, and waters damaged through past practices.

30-10-30 Strategy

HHS has adopted and will adhere to a Code of Environmental Management Principles (CEMP) to help achieve the goals of the HHS environmental protection program. As part of the effort to implement these principles throughout HHS, all OPDIVS/STAFFDIVS will integrate the following principles into their environmental protection programs:

1.

Management Commitment—

Written top management commitment to improved environmental performance by establishing policies which emphasize pollution prevention and the need to ensure compliance with environmental requirements.

2.

Compliance Assurance and Pollution Prevention—

Proactive programs that aggressively identify and address potential compliance problem areas and utilize pollution prevention approaches to correct deficiencies and improve environmental performance.

3.

Enabling Systems—

Necessary systems to enable personnel to perform their functions consistent with regulatory requirements, HHS environmental policies, and the HHS overall mission.

4.

Performance and Accountability

—Measures to address employee environmental performance and ensure full accountability of environmental functions.

5.

Measurement and Improvement

—A program to assess progress toward meeting organization environmental goals, and which uses the results of that assessment to improve environmental performance.

Subject: Administrative Requirements

30-20-00 Background

30-20-10 Responsibilities

30-20-20 Approval Authority and Delegations of Authority

30-20-30 Process for Establishing Categorical Exclusions

30-20-40 Categories of Exclusion

30-20-50 Environmental Review Procedures

30-20-00 Background

This chapter establishes an administrative framework in the Department of environmentally-related activities. Specifically, this chapter (1) describes the assignment of relative responsibilities in the Department regarding environmental activities; (2) establishes procedures for program reviews; and (3) establishes other on-going administrative requirements.

30-20-10 Responsibilities

A.

Office of the Secretary.

The Secretary shall designate an official as the Department Environmental Officer, who will be responsible for:

1. Preparing Departmental guidelines and other policy documents for issuance by the Secretary or other appropriate Department official pertaining to environmental protection and preservation of natural or cultural assets;

2. Approving lead agency agreements having Department-wide applicability;

3. Providing training to HHS program officials with respect to carrying out the requirements of environmental statutes and Executive Orders;

4. Maintaining liaison with the Council on Environmental Quality (CEQ), Environmental Protection Agency (EPA), and other Federal agencies charged with direct responsibility for administering environmental statutes and Executive Orders;

5. Coordinating the review of environmental statements originating from outside of HHS. This responsibility is delegated to the Centers for Disease Control and Prevention, National Center for Environmental Health (FR, Vol. 43 no. 164, Aug. 23, 1978); and

6. Reviewing and making recommendations to the Assistant Secretary for Management and Budget with respect to determinations by OPDIVs/STAFFDIVs that certain activities are categorically excluded from environmental review.

B.

OPDIVs/STAFFDIVs

. Heads of OPDIVs/STAFFDIVs are responsible for ensuring that organizational units under their authority, including regional, comply with all provisions of all applicable Federal, State, and local environmental laws, statutes, regulations and Executive Orders and with the procedures of part 30. An OPDIV/STAFFDIV head may designate an environmental officer, who may act in either a full-time capacity or in addition to other duties, to assist in fulfilling these responsibilities.

30-20-20 Approval Authority and Delegations of Authority

A.

Delegation of Authority.

The OPDIV/STAFFDIV head may redelegate all of their environmental responsibilities to subordinate program managers except for the authority of an OPDIV/STAFFDIV head to approve the designation of actions as categorically excluded. OPDIV/STAFFDIV heads shall obtain concurrence from the Assistant Secretary for Management and Budget with respect to activities designated to be categorically excluded from environmental reviews.

B.

Excluded Material.

The exclus8ion of material from environmental impact statements on the basis of national security and trade secrets requires approval by the HHS Office of the General Counsel. (See Section 30-30-40.)

C.

Natural Assets.

Proposed actions which will have an effect on certain natural assets may require concurrence or approval from other Federal agencies and/or entities prior to taking the action. (See chapter 30-40.)

D.

Floodplains/Wetlands.

OPDIV/STAFFDIV heads shall sign determinations pursuant to Executive Order 11988, Floodplain Management, and Executive Order 11990, Protection of Wetlands, except:

1. The Secretary shall approve proposed actions requiring environmental impact statements on projects affecting floodplains; and

2. The Secretary shall approve proposed actions requiring environmental assessments or environmental impact statements for new construction in wetlands.

30-20-30 Program Reviews

a.

Actions Requiring Environmental Review.

All HHS activities will be evaluated to determine whether such activities are actions that require environmental review. In a program review, an OPDIV/STAFFDIV evaluates actions it will be taking in order to determine the potential of these actions to cause an environmental effect under an applicable environmental statute or Executive Order. OPDIVs/STAFFDIVs should have already completed an initial review.

OPDIVs/STAFFDIVs may undertake additional program reviews subsequently whenever they deem it appropriate.

As a result of program review, an OPDIV/STAFFDIV shall divide each of its actions in one of three groups:

Group 1 (categorically excluded)

—Those actions which do not individually or cumulatively have a significant effect on the human environment or affect a natural or cultural asset protected by an environmental statute or Executive Order.

Group 2

—Those actions which require an environmental review because they may cause a significant environmental effect under NEPA or may affect a protected cultural or natural asset protected by an environmental statute or Executive order.

Group 3

—Those actions which normally do cause a significant environmental effect under NEPA or affect a cultural or natural asset protected by an environmental statute or Executive Order.

In grouping each of its actions OPDIVs/STAFFDIVs shall use the exclusion categories described in Section 30-20-40. If an action falls within one of these exclusion categories, then it may be included in Group 1. Such actions do not require environmental reviews, except in circumstances described in 30-20-40. If an action does not fall within one of these exclusion categories, then an OPDIV/STAFFDIV must perform an environmental review prior to taking the action. Chapters 30-30 and 30-50 describe the procedures for conducting an environmental review.

Each OPDIV/STAFFDIV shall maintain as part of its organizational guidance documents lists of these actions which it has determined fall under Groups 1, 2, and 3 or shall have procedures that address such actions. These lists shall supplement other internal directives or instructions concerning environment-related responsibilities.

B.

Approval.

A determination by an OPDIV/STAFFDIV that an action falls within Group 1 (Categorically Excluded) is effective upon approval by the OPDIV/STAFFDIV head or, as required, after the issuance of specific guidance. However, OPDIVs/STAFFDIVs must report these determinations to the Assistant Secretary for Management and Budget. Determination that an action falls within Group 1 (Categorically Excluded) is effective until rendered inapplicable because of changes in the underlying program authority or regulation.

C.

Publication of Additional Categorical Exclusions by OPDIVs/STAFFDIVs.

An OPDIV/STAFFDIV may establish additional categorical exclusions that pertain to the actions of that OPDIV/STAFFDIV after review by the Assistant Secretary for Management and Budget and publication for public comment in the

Federal Register,

in accordance with the procedures established by that OPDIV/STAFFDIV. All categorical exclusions not covered by the general listing in

Federal Register

.

30-20-40 Categories of Exclusion

A.

Application of Categorical Exclusions

1.

Required Determinations.

To find that an action is categorically excluded, an OPDIV/STAFFDIV shall determine the following:

(a)

Falls Within Exclusion Category.

The proposed action falls within one of the three exclusion categories described in this section. This determination may take place as the result of a program review of an OPDIV's/STAFFDIV's actions, in which case the action is listed in the OPDIV's/STAFFDIV's administrative issuance system as being categorically excluded from further environmental reviews.

(b)

Absence of Extraordinary Circumstances.

There are no extraordinary circumstances related to the proposal that may affect the significance of the environmental effects of the proposal. Extraordinary circumstances are unique situations presented by specific proposals, such as scientific controversy about the environmental effects of the proposal; uncertain effects or effects involving unique or unknown risks; or unresolved conflicts concerning alternate uses of available resources within the meaning of section 102(2)(E) of NEPA; and where it is reasonable to anticipate a cumulatively significant impact on the environment. See 40 CFR 1508.27 for examples.

2. All categorical exclusions in this Part may be applied by any organizational element of HHS.

3. A class of actions includes activities foreseeably necessary to proposals encompassed within the class of actions (such as associated transportation activities and award of implementing grants and contracts).

B.

Categories of Actions Which May Be Excluded From Environmental Review.

Categories of actions which may be excluded from environmental review include, but are not limited to the following:

1.

Category No. 1—General Exclusions:

(a) When a law or regulation grants an exception, unless precluded by an OPDIV/STAFFDIV regulation;

(b) When the courts have found that the action does not require environmental review; and

(c) When an action implements actions outside the territorial jurisdiction of the United States and such actions are excluded from review by Executive Order 12114.

2.

Category No. 2—Functional Exclusions:

(a) Routine administrative and management support, including legal counsel, public affairs, program evaluation, monitoring and individual personnel actions;

(b) Appellate reviews when HHS was the plaintiff in the lower court decision (

e.g.,

a case involving failure by a nursing home to comply with fire and safety regulations);

(c) Information technology management;

(d) Education and training grants and contracts (

e.g.,

grants for remedial training programs or teacher training) except projects involving construction, renovation, or changes in land use;

(e) Grants for administrative overhead support (

e.g.,

regional health or income maintenance program administration);

(f) Grants for social services (

e.g.,

support for Head Start, senior citizen programs or drug treatment programs) except projects involving construction, renovation, or changes in land use;

(g) Liaison functions (

e.g.,

serving on task forces, ad hoc committees or representing HHS interests in specific functional areas in relationship with other governmental and non-governmental entities);

(h) Maintenance (

e.g.,

undertaking repairs necessary to ensure the functioning of an existing facility), except for properties on or eligible for listing on the National Register of Historic Places;

(i) Statistics and information collection and dissemination (

e.g.,

collection of health and demographic data and publication of compilations and summaries);

(j) Technical assistance by HHS program personnel (

e.g.,

providing assistance in methods for reducing error rates in State public assistance programs or in determining the cause of a disease outbreak); and

(k) Adoption of regulations and guidelines pertaining to the above activities (except technical assistance and those resulting in population changes).

(e)

Category 3—Program Exclusions.

These exclusions, when applicable, result from a substantive review and determination by an OPDIV/STAFFDIV that certain programs or certain activities within a program will not normally (a) significantly affect the human environment (as defined by NEPA) or (b) affect an asset (as defined in an applicable environmental statute or Executive Order) regardless of the location or magnitude of the action. For example, and OPDIV/STAFFDIV, following its review, might determine that the following are unlikely to cause an environmental effect: assigning a member of the commissioned Corps to a locality to supplement existing medical personnel or providing funds to support expansion of emergency medical services in existing hospitals.

30-20-50 Environmental Review Procedures

An OPDIV/STAFFDIV must conduct environmental reviews with respect to all proposed actions that are subject to an environmental statute or Executive Order which do not fall under categorical exclusions 1, 2, or 3. Chapters 30-30 and 30-50 discuss the process for conducting an environmental review with respect to a specific proposed action and for fulfilling documentation and other requirements. Each OPDIV/STAFFDIV shall ensure that its programs have appropriate procedures for conducting environmental reviews, for completing required documentation, and for ensuring public involvement and intergovernmental consultation. These procedures must be in writing and be included in the internal organizational guidance documents or regulations. These procedures must, at a minimum, address the following:

A. A list of those actions which the OPDIV/STAFFDIV has categorically excluded from further environmental review requirements. Note that for any particular action, there still must be absence of extraordinary circumstances as noted in 30-20-40, A.1.(b).

B. A list of those actions or circumstances when actions require an environmental review prior to taking the action.

C. Designation of officials responsible for environment-related activities including determinations as to whether to prepare an environmental impact statement or an environmental assessment, if one is required.

D. Procedures for preparing and circulating environmental statements (including data required by the applicable environmental statute or Executive Order for the type of action covered).

E. Procedures for ensuring the coordination of environmental review with program decision-making, including concurrent development and circulation of environmental documents with program documents and the identification of key decision-making points.

F. Procedures for consulting with other Federal agencies responsible for the environmental statutes or Executive Orders, if necessary.

G. Procedures for developing lead agency agreements (as described in 30-30-20B and 30-50).

H. A prohibition against precluding or prejudicing selection of alternatives in an environmental impact statement without regard to environmental risks.

I. Procedures for establishing a reviewable record, including making environmental statements and related decision-making materials part of the record of formal rule-making and adjudicatory proceedings.

J. Provisions for early consultation and assistance to potential applicants and non-Federal entities in planning actions and developing information necessary for later Federal involvement (as described in 30-30-20C and 30-50).

K. Descriptions of circumstances which preclude completion of environmental reviews within reasonable time frames because of public health and safety considerations and procedures for after-the-fact completion.

L. Provision for ensuring that applications and other materials from potential grantees or other recipients of Departmental funds, on a program-by-program basis, include information necessary to conduct an environmental review. Such information shall include the identification of any properties which may be eligible for listing on the National Register of Historic Places.

M. Provision for identifying cultural assets which a program controls through leases or Federal ownership, and for nominating such historic properties to the National Register of Historic Places.

Subject: General Environmental Review Procedures

30-30-00 Overview

30-30-10 Summary Description

30-30-20 Environmental Review

30-30-30 Environmental Statements

30-30-40 Intergovernmental Consultation and Document Review

30-30-00 Overview

Certain environmental statutes and Executive Orders require an environmental review of proposed Federal actions to determine whether such actions will have environmental effects.

The purpose of this chapter is to describe overall the steps which Department officials must take in conducting environmental reviews of specific proposed actions. Within these general steps, the individual environmental acts differ significantly with respect to public involvement, intergovernmental consultation, and documentation required. The chapters at 30-40 and 30-50 following (entitled Natural Asset Review and NEPA Review) discuss these specific requirements in greater detail.

Note:

The procedures and requirements in chapters 30-40 and 30-50 take precedence over the general statements in this chapter and must be consulted before determining the steps that must be taken with regard to a specific action. The discussion in this chapter generally does not apply to chapters 30-60 to 30-90.

30-30-10 Summary Description

The following is a summary description of the general types and sequence of activities which Departmental officials should carry out in reviewing specific proposed actions under this Part.

A. Determine that a proposed activity constitutes an action as defined under Section 30-00-30 (Definitions) that is subject to an environmental statute or Executive Order.

B. Determine whether the proposed action is categorically excluded from all environmental review requirements. If it is excluded, no further environmental review is necessary.

C. For proposed actions not categorically excluded, conduct an environmental review in accordance with applicable program environmental review procedures to determine whether the proposed action will cause an environmental effect under one or more of the environmental statutes or Executive Orders.

D. Determine whether it is necessary to prepare an environmental document,

e.g.,

an environmental assessment, and if necessary, an environmental impact statement under NEPA. Circulate the environmental document among the public, Federal, State and local agencies, and other interested parties, as appropriate.

E. Carry out the requirements for public involvement and intergovernmental consultation as required under the applicable environmental statutes or Executive Orders, including any necessary approvals.

F. Prepare the necessary environmental documentation and proceed with the program decision-making process.

30-30-20 Environmental Review

A.

General.

OPDIVs/STAFFDIVs must perform an environmental review for each proposed action not categorically excluded in accordance with the OPDIV's/STAFFDIV's environmental procedures. The purpose of an environmental review is to answer the following general questions: (Individual environmental acts differ with respect to the specific scope and methodology required in conducting an environmental review.)

1. Which environmental statutes or Executive Orders apply to the proposed action?

2. Will a proposed action have an environmental effect under any of the environmental statutes or Executive

Orders, as defined in regulation or by court interpretation?

3. Should this HHS OPDIV/STAFFDIV prepare an environmental assessment or an environmental impact statement, given the environmental statutes and Executive Orders involved and the kinds and degree of environmental effects anticipated?

B.

Agreements with Other Agencies.

When two or more agencies are engaged in the same action, a lead agency agreement provides one agency with the authority to conduct the environmental review. These agreements determine the content and type of statement and specify which Federal agency will prepare it. The agreement includes a schedule for the preparation and circulation of the document, as well as an assignment of important tasks among the agencies involved. Lead agency agreements may be signed with other agencies for individual actions or for a particular type of action.

C.

Non-Federal Agencies.

Whenever an HHS program requests or permits a non-Federal agency to perform an environmental review, the program shall outline the type of information required, perform an independent evaluation, and assume responsibility for the scope and content of the material.

30-30-30 Environmental Documents

A. On the basis of the environmental review, OPDIVs/STAFFDIVs shall determine what type of environmental document to prepare. Under NEPA, either an environmental assessment and finding of no significant impact or an environmental impact statement would generally be required. Environmental impact statements are prepared in two stages: draft and final. A final statement includes a consideration of comments submitted by persons or organizations reviewing the draft statement. Under some laws covered by this Part, an environmental assessment may also have to be prepared in draft for review and comment before being finalized.

The chapters at 30-40 and 30-50 following (Natural Asset Review and NEPA Review) discuss these different requirements in greater detail and must be consulted to ascertain the specific requirements of NEPA and each of the related statutes and Executive Orders.

B.

Description.

1.

Environmental Impact Statements.

An environmental impact statement is a detailed written statement on, (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided, (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 productivity and (v) and irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Draft environmental impact statements shall not exhibit biases in favor of the proposed action. A final statement may include a recommendation with a rationale for a preferred action (see chapter 30-50 for correct NEPA terminology and process).

2.

Environmental Assessments.

An environmental assessment is generally a concise document which provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. It shall include, in detail, the environmental impact of reasonable alternatives. OPDIVs/STAFFDIVs generally can use an environmental assessment in order to satisfy any review, consultation, and public notice requirements of the applicable environmental statutes and Executive Orders and to otherwise inform individuals and organizations who may be interested in or affected by the proposed action (see chapter 30-50 for correct NEPA terminology and process).

C.

Alternatives.

Environmental impact statements must explore and evaluate reasonable alternatives to the proposed action in terms of their environmental consequences, benefits and costs, and contribution to the underlying purpose or goal. Discussion of alternatives must be sufficiently in-depth to permit a meaningful comparison of alternative courses of action.

Environmental impact statements shall consider the following categories of alternatives, as appropriate:

1.

No Action By Any Organization.

This alternative serves as a baseline against which to measure the environmental consequences, costs, and benefits of the proposed action and other alternatives.

2.

Action Alternatives.

One or more alternative courses of action directed at achieving the underlying purpose or goal. The environmental impact statement cannot automatically exclude actions:

• Outside the expertise or jurisdiction of Departmental organizations,

e.g.,

examining the possible use of other real properties other than that proposed for transfer by HHS; or

• Which only partially achieve an underlying goal or objective,

e.g.,

funding a health care facility at a lower capacity for patient care. However, action alternatives considered must be reasonably available, practicable, and be related to the underlying purpose or goal. An environmental impact statement must include all reasonable alternatives.

3.

Alternative Safeguards.

These are alternative actions which could mitigate the adverse environmental consequences of one or more of the action alternatives.

4.

Delayed Action Alternative.

This alternative is to postpone or delay a proposed action in order to conduct more research or for other reasons.

5.

Alternative Uses.

When a proposed action would affect a scarce or valuable resource (e.g., prime agricultural farmland), the potential alternative uses of the resource must be identified so that they may be compared with the value of the proposed action.

30-30-40 Intergovernmental Consultation and Document Review

OPDIVs/STAFFDIVs are responsible for meeting the various requirements under environmental statutes and Executive Orders for intergovernmental consultation and public involvement. These requirements differ significantly. OPDIVs/STAFFDIVs must refer to the more detailed descriptions in 30-40 and 3-50 and should consult an environmental officer for guidance.

As required, OPDIVs/STAFFDIVs shall circulate draft environmental impact statements for review and comment, and otherwise make them available to the public upon request to the extent such statements are not protected from disclosure by existing law applicable to the agency's operation. Statements should be circulated to the Federal agency responsible for administering the applicable environmental act, involved non-Federal agencies at the State or local level, and interested public persons or groups within the geographic area of the environment affected. The review period is generally no less than 30 days for a draft environmental assessment and no less than 60 days for a draft environmental impact statement. Whenever a draft environmental impact statement is significantly revised because of comments received or because the nature or scope of the proposed action changes significantly, OPDIVs/STAFFDIVs shall prepare a new draft environmental impact statement for circulation. Circulation of certain portions of the document is not necessary when it involves the following:

A.

National Security.

Circulation of classified sections of environmental documents is subject to regulations

pertaining to matters of national security.

B.

Trade Secrets.

Circulation of sections of environmental documents that disclose a trade secret is subject to 18 U.S.C. 1905 or 21 U.S.C. 331(j) governing the protection and disclosure of trade secrets.

Subject: Natural Asset Review

30-40-00 Applicability of Consultation Requirements

30-40-05 Integration with NEPA Review Process

30-40-10 Coastal Zone Management Act of 1972

30-40-20 Endangered Species Act of 1973

30-40-30 Fish and Wildlife Coordination Act

30-40-40 Floodplain Management

30-40-50 Marine Protection, Research, and Sanctuaries Act of 1972

30-40-60 Safe Drinking Water Act (Sole Source Aquifers)

30-40-70 Wetlands Protection

30-40-80 Wild and Scenic Rivers Act

30-40-00 Applicability of Consultation Requirements

The environmental statutes and Executive Orders described in this chapter require consideration of the effects of a proposed action on specific types of places or species. Generally, they prohibit further action until the Federal agency proposing to take action has consulted with the Federal or State agency responsible for administering the law. The species requiring consideration are listed by the Department of the Interior. The places requiring consideration are:

A. Coastal Zones (as identified in a State coastal zone management plan);

B. Habitats of Endangered Species (as identified by the Department of the Interior);

C. Streams and other bodies of water;

D. Floodplains (as identified on HUD floodplain maps);

E. Marine Sanctuaries (as identified by the Secretary of Commerce);

F. Sole Source Aquifers (as identified by the Environmental Protection Agency);

G. Wetlands (all); and

H. Wild and Scenic Rivers (as identified by the Departments of the Interior and Agriculture).

Table 1 indicates whether the administering agency has published regulations implementing the consultation requirement. OPDIVs/STAFFDIVs are responsible for consulting with the appropriate Federal or State agency before taking action in accordance with the procedures in this chapter and in the applicable statute, Executive Order, or implementing regulation.

Table 1.—Agency Consultation Procedures

Natural asset statute or executive order

Citation

Consultation procedures

Coastal Zone Management Act of 1972

16 U.S.C. §§ 1451-1464

15 CFR Part 930.

Endangered Species Act of 1973

16 U.S.C. §§ 1531-1544

50 CFR Part 402.

Fish and Wildlife Coordination Act

16 U.S.C. §§ 661-666c

16 U.S.C. § 662.

Executive Order 11988, Floodplain Management

42 FR 26951 (1977), as amended by E.O. 12148, 44 FR 43239 (1979); 16 U.S.C. § 4321 note

Floodplain Management Guidelines, U.S. Water Resources Council, 43 FR 6030 (1978).

Marine Protection, Research, and Sanctuaries Act of 1972

16 U.S.C. §§ 1431-1445a; 33 U.S.C. §§ 1401-1445

Safe Drinking Water Act

42 U.S.C. §§ 300f-300j-26

42 U.S.C. § 300h-3; 40 CFR Part 149.

Executive Order 11990, Protection of Wetlands

42 FR 26961 (1977), as amended by E.O. 12608, 52 FR 34617 (1987); 42 U.S.C. § 4321 note

Wild and Scenic Rivers Act

16 U.S.C. §§ 1271-1287

36 CFR Part 297.

30-40-05 Integration With NEPA Review Process

OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions to determine whether they will affect places and species described in this chapter. OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action in accordance with the procedures for National Environmental Policy Act (NEPA) review in chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, the documentation required by the applicable statute or Executive Order and the administering agency regulations are to be included in the EA or EIS. In addition, the consultation procedures required by the environmental statute or Executive Order shall be followed.

30-40-10 Coastal Zone Management Act of 1972

A.

Purpose.

The Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. 1451-1464, declares that it is the national policy “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone * * *”. In furtherance of this policy, the Act provides Federal assistance to States for developing and implementing coastal zone management programs. Section 307(c)(1)(A) of the CZMA (16 U.S.C. 1456(c)(1)(A)) provides that “[each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.”

National Oceanic and Atmospheric Administration (NOAA) regulations codified at 15 CFR part 930, Subpart C—Consistency for Federal Activities, implements section 307 of the CZMA. These “consistency” regulations are designed to assure that all Federally conducted or supported activities, including development projects, directly affecting the coastal zone are undertaken in a manner consistent to the maximum extent practicable with approved State coastal management programs.

B.

Definitions.

1.

Federal activity.

The term “Federal activity” means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities. The term “Federal activity” does not include the issuance of a Federal license or permit to an applicant or person or the granting of Federal assistance to an applicant agency.

2.

Federal development project.

The term “Federal development project” means a Federal activity involving the planning, construction, modification, or removal of public works, facilities, or

other structures, and the acquisition, utilization, or disposal of land or water resources.

3.

Coastal Zone.

The CZMA defines the term “coastal zone” as “the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches.” Zone boundaries are described in 16 U.S.C. 1453(1). The CZMA excludes from the definition of coastal zone lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers, or agents (

e.g.,

nonterminated California Indian rancherias).

4. “

Consistent to the maximum extent practicable.

” The term “consistent to the maximum extent practicable” describes the requirement for Federal activities, including development projects, directly affecting the coastal zone of States with approved management programs to be fully consistent with such programs unless compliance is prohibited based upon the requirements of existing law applicable to the Federal agency's operations.

C.

Requirement.

An OPDIV/STAFFDIV undertaking any development project in the coastal zone of a State shall ensure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.

OPDIVs/STAFFDIVs shall determine which of their activities directly affect the coastal zone of States with approved management programs. OPDIVs/STAFFDIVs shall consider all development projects within the coastal zone to be activities directly affecting the coastal zone. All other types of activities within the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone. Federal activities outside of the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone.

Integration with NEPA.

OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action affecting a coastal zone in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a consistency determination, described in 30-40-10E, shall be included in the EA or EIS.

E.

Consistency Determination.

OPDIVs/STAFFDIVs shall provide State agencies with consistency determinations for all Federal activities directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to consult with State agencies during their efforts to assess whether an action will be consistent to the maximum extent practicable with a State management program.

A consistency determination should be prepared following development of sufficient information to determine reasonably the consistency of the activity with the State's management program, but before the OPDIV/STAFFDIV reaches a significant point of decision-making in its review process. An OPDIV/STAFFDIV shall provide a consistency determination to the relevant State agency designated under section 306(d)(6) of the CZMA (16 U.S.C. 1455(d)(6)) at the earliest practicable time in the planning or reassessment of the activity, but in no case later than 90 days before final approval of the Federal activity, unless both the OPDIV/STAFFDIV and the State agency agree to a different schedule.

OPDIVs/STAFFDIVs must ensure that their activities are consistent to the maximum extent practicable with the enforceable, mandatory policies of the management program. However, OPDIVs/STAFFDIVs need only give adequate consideration to management program provisions which are in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have to evaluate coastal zone effects for which the management program does not contain mandatory or recommended policies because, in the absence of such provisions, there is no basis for making a consistency determination with respect to such effects.

F.

Negative Determination.

If a OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

If a OPDIV/STAFFDIV decides that a consistency determination is not required for a Federal activity (1) identified by a State agency on its list or through case-by-case monitoring, (2) which is the same as or similar to activities for which consistency determinations have been prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a thorough consistency assessment and developed initial findings on the effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall provide the State agency with a notification, at the earliest practicable time in the planning of the activity, briefly setting forth the reasons for its negative determination. A negative determination shall be provided to the State agency at least 90 days before final approval of the activity, unless both the OPDIV/STAFFDIV and the State agency agree to an alternative notification schedule.

G.

Content of a consistency determination.

The consistency determination shall include a brief statement indicating whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the management program. The statement must be based upon an evaluation of the relevant provisions of the management program. The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal zone effects, and comprehensive data and information sufficient to support the consistency statement. The amount of detail in the statement evaluation, activity description, and supporting information shall be commensurate with the expected effects of the activity on the coastal zone.

If HHS standards are more restrictive than standards or requirements contained in the State's management program, the State should be informed in the consistency determination of the statutory, regulatory, or other basis for the application of the stricter standards.

If an OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

H.

State Review Period.

A State agency is required to inform the OPDIV/STAFFDIV of its agreement or disagreement with the consistency determination at the earliest practicable time. OPDIVs/STAFFDIVs may presume State agency agreement if the State agency fails to provide a response within 45 days from receipt of the consistency determination. State agency agreements shall not be presumed in cases where the State agency, within the 45 day period, requests an extension of time to review the matter.

OPDIVs/STAFFDIVs shall approve one request for an extension period of

15 days or less. In considering whether a longer or additional extension period is appropriate, consideration should be given by the OPDIV/STAFFDIV to the magnitude and complexity of the information contained in the consistency determination.

I.

Final Action.

An OPDIV/STAFFDIV shall not undertake final action sooner than 90 days from the issuance of the consistency or negative determination to the State agency unless both the OPDIV/STAFFDIV and the State agency agree to an alternative period.

J.

Mediation by Secretary of Commerce.

In the event of a serious disagreement between an OPDIV/STAFFDIV and a State agency regarding a determination related to whether a proposed activity directly affects the coastal zone, either party may seek the Secretarial mediation services provided for in Subpart G of 15 CFR part 930.

K.

Licenses, permits.

OPDIVs/STAFFDIVs shall follow the procedures in 15 CFR part 930 when the action involves an applicant for a Departmental license or permit.

L.

Excluded Actions.

The requirements in this section shall not apply to those types of actions which are specifically excluded by the approved CZM plan.

30-40-20

Endangered Species Act of 1973

A.

Purpose.

The Endangered Species Act of 1973, 16 U.S.C. 1531-1544, directs Federal agencies, in consultation with either the Secretary of the Interior or of Commerce, as appropriate, to carry out conservation programs for endangered or threatened species of fish, wildlife, or plants (“listed species”) and habitat of such species that has been designated as critical (“critical habitat”). Such affirmative conservation programs must comply with applicable permit requirements for listed species and should be coordinated with the appropriate Secretary.

Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every Federal agency, in consultation with the assistance of the appropriate Secretary, to ensure that any action it authorizes, funds, or carries out, is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. The Act also requires Federal agencies to confer with the Secretary of the Interior or of Commerce on any action that is likely to jeopardize the continued existence of a proposed species or result in the destruction or adverse modification of a proposed critical habitat. The Act prohibits Federal agencies from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or the destruction or adverse modification of critical habitat. Section 9 of the Act prohibits any unauthorized “take” of listed species. The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act.

B.

Governing Regulations and Organization Responsible for Consultation.

Interagency consultation procedures under the Endangered Species Act are codified at 50 CFR part 402. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12. The designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/STAFFDIV shall contact the NMFS. For all other listed species, an OPDIV/STAFFDIV shall contact the FWS.

C.

Definitions.

The regulations governing interagency cooperation and consultation under the ESA in 50 CFR part 402 define many of the terms and phrases that are used in the regulations and this section.

1.

Biological Assessment.

A biological assessment is a document, prepared by or under the direction of a Federal agency, concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation of potential effects of the action on such species and habitat.

2.

Biological Opinion.

A biological opinion is the document that states the opinion or the FWS or the NMFS as to whether or not a proposed Federal agency action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. The Service may issue one of two types of opinions:

(a)

Jeopardy Biological Opinion.

An opinion by the Service that the proposed Federal agency action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a “jeopardy biological opinion”.

(b)

No Jeopardy Biological Opinion.

An opinion by the Service that the proposed Federal agency action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a “no jeopardy” biological opinion.

3.

Director.

The term “Director” refers to, as appropriate, the:

(a) Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration or an authorized representative; or

(b) Fish and Wildlife Service Regional Director, or authorized representative, for the region where the action would be carried out.

4.

Listed Species.

Listed species means any species of fish, wildlife, or plant which has been determined to be endangered or threatened under section 4 of the Act. Listed species are found in 50 CFR 17.11-17.12.

5.

Service.

The term “Service” means the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.

D.

Integration with NEPA.

The consultation, conference, and biological assessment procedures required by section 7 of ESA that are summarized in this section may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the requirements of these other statutes, however, does not in itself relieve an OPDIV/STAFFDIV of its obligations to comply with the procedures set forth in 50 CFR part 402 or the substantive requirements of section 7 of ESA. Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes.

E.

Conference Regarding Proposed Species or Critical Habitat.

An OPDIV/STAFFDIV shall confer with the Director of the FWS or the NMFS, as appropriate, on any action which is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat. The conference is an informal process that is designed to assist in identifying and resolving potential conflicts at an early stage in the planning process and can result in advisory recommendations from the Service regarding ways to minimize or avoid adverse effects from the proposed action. If the proposed species is subsequently listed or the proposed critical habitat is designated prior to

completion of an HHS action, the responsible OPDIV/STAFFDIV shall review the action to determine whether formal consultation is required. An OPDIV/STAFFDIV may request that a conference be conducted in accordance with the formal consultation procedures in 50 CFR 402.14.

The conclusions reached during a conference and any recommendations will be documented by the Service and provided to the OPDIV/STAFFDIV. The results of the conference shall be included in the HHS organization's appropriate documentation if the proposed action is being reviewed in accordance with NEPA procedures in Chapter 30-50.

F.

Biological Assessment

1.

Purpose.

An OPDIV/STAFFDIV shall use the biological assessment in determining whether a conference is required with the Service. If the biological assessment indicates that the action is not likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat, and the Director concurs, then a conference is not required. The Director may use the results of the biological assessment in (1) determining whether to request the OPDIV/STAFFFDIV to initiate a conference, (2) formulating a biological opinion, or (3) formulating a preliminary biological opinion.

2.

Requirement.

A biological assessment shall be prepared for all major construction activities. The biological assessment shall be completed before any contract for construction is entered into and before construction is begun.

3.

Request for information.

The OPDIV/STAFFDIV shall convey to the Director either (1) a written request for a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area; or (2) a written notification of the species and critical habitat that are being included in the biological assessment. Within 30 days of receipt of the notification of, or the request for, a species list, the Director shall either concur with or revise the list. If the Director advises that no listed species or critical habitat may be present, a biological assessment and further consultation is not required. If only proposed species or proposed critical habitat may be present in the action area, the OPDIV/STAFFDIV must confer with the Service if required under 50 CFR 402.10, but preparation of a biological assessment is not required unless the proposed listing and/or designation becomes final.

4.

Contents.

The contents of a biological assessment are at the discretion of the submitter and will depend on the nature of the Federal action. The following may be considered for inclusion:

(a) The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally;

(b) The view of recognized experts on the species at issue;

(c) A review of the literature and other information;

(d) An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies;

(e) An analysis of alternate actions considered by the Federal agency for the proposed action.

5.

Submission of Biological Assessment.

The OPDIV/STAFFDIV shall submit the completed biological assessment to the Director for review within 180 days after its initiation. The Director will respond in writing within 30 days as to whether or not the Director concurs with the findings of the biological assessment. An OPDIV/STAFFDIV, at its option, may request that formal consultation be initiated concurrently with the submission of the assessment.

G.

Formal Consultation Process for Listed Species and Critical Habitat

1.

Consultation Requirement.

An OPDIV/STAFFDIV shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in this subsection. An OPDIV/STAFFDIV need not initiate formal consultation if, as a result of the preparation of a biological assessment under 50 CFR 402.12 or as a result of information consultation with the Service under 50 CFR 402.13, the OPDIV/STAFFDIV determines, with the written concurrence of the Director of the Service, that the proposed action is not likely to adversely affect any listed species or critical habitat. Formal consultation shall not be initiated by an OPDIV/STAFFDIV until any required biological assessment has been completed and submitted to the Director in accordance with 50 CFR 402.12.

2.

Contents of Request.

A written request to initiate formal consultation shall be submitted to the Director of the Service and shall include:

(a) A description of the action to be considered;

(b) A description of the specific area that may be affected by the action;

(c) A description of any listed species or critical habitat that may be affected by the action;

(d) A description of the manner in which the action may affect any listed species or critical habitat and an analysis of any cumulative effects;

(e) Relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared; and

(f) Any other relevant available information on the action, the affected listed species, or critical habitat.

An OPDIV/STAFFDIV that requests formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat.

H.

Irreversible or Irretrievable Commitment of Resources.

After initiation or reinitiation of consultation required under ESA, and OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment of resources with respect to the proposed action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating ESA. This prohibition remains in force during the consultation process and continues until the requirements of section 7(a)(2) of ESA are satisfied.

Note:

The prohibition in this subsection does not apply to the conference requirement for proposed species or proposed critical habitat under section 7(a)(4) of the Act.

I.

Duration and Extension of Formal Consultation.

Formal consultation concludes within 90 days after its initiation unless extended in accordance with 50 CFR 402.14(e). If the Service does not respond within 90 days, the Department may reach its own conclusion with respect to whether the proposed action will jeopardize the continued existence of a species or result in the destruction or adverse modification of a critical habitat.

J.

Issuance of Biological Opinion.

The Service will provide a biological opinion to the OPDIV/STAFFDIV at the end of the consultation process as to whether the proposed action, taken together with cumulative effects, would be likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of a critical habitat. A “jeopardy” biological opinion by the Service will include reasonable and prudent alternatives, if any, to the proposed agency action that can be taken by the OPDIV/STAFFDIV to avoid violation of

ESA. If the Service is unable to develop such alternatives, it will indicate that to the best of its knowledge, there are no reasonable and prudent alternatives. The Service may also formulate discretionary conservation recommendations, if any, which will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts that its proposed action may have on listed species or critical habitat.

The Service's “no jeopardy” or “jeopardy” biological opinion shall be included in any documentation required under NEPA procedures if the proposed action is being assessed in accordance with NEPA and the procedures in Chapter 30-50.

K.

Termination of Consultation Process.

Formal consultation is terminated with the issuance of the biological opinion or if, during any stage of consultation, an OPDIV/STAFFDIV determines, with the concurrence of the Director, that its proposed action is not likely to adversely affect any listed species or critical habitat. If an OPDIV/STAFFDIV determines that its proposed action is not likely to occur, it may terminate the consultation process by written notice to the Service.

L.

Responsibilities After Issuance of Biological Opinion.

Following the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine whether and in what manner to proceed with the action in light of its ESA Section 7 obligations and the Service's biological opinion.

If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV shall notify the Service of its final decision on the action. If the OPDIV/STAFFDIV determines that it cannot comply with the requirements of section 7(a)(2) of ESA after consultation with the Service, it may apply for an exemption. Procedures for exemption applications by Federal agencies and others are found in 50 CFR part 451. No action shall occur unless or until the OPDIV/STAFFDIV has received approval of the exemption.

M.

Emergencies.

The interagency cooperation regulation in 50 CFR part 402 provides that where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedure that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies. An OPDIV/STAFFDIV may request expedited consultation by submitting information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. Formal consultation is to be initiated as soon as practicable after the emergency is under control.

N.

Exemptions.

ESA provides procedures for granting exemptions from the requirements of section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR part 451, and regulations governing the exemption process are found at 50 CFR parts 450, 452, and 453.

O.

Applicant Procedures.

ESA and the implementing procedures in 50 CFR part 402 provide for participation in the conference and consultation processes by any person (as defined in section 3(13) of the Act) who requires formal approval or authorization from HHS as a prerequisite to conducting the action.

30-40-30

Fish and Wildlife Coordination Act

A.

Purpose.

The Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, provides for equal consideration of wildlife with other features of water resource development programs with a view toward conservation of wildlife resources. The Act requires Federal agencies involved in actions that will result in the control or 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 and to affirmatively provide development and improvement of the wildlife resources in connection with the proposed action.

B.

Responsibilities and Consultation Requirements

1. An OPDIV/STAFFDIV shall consult, in accordance with 16 U.S.C. 662, with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the State agency exercising administration over wildlife resources, before taking or approving an action that would control or modify any natural stream or other body of water for any purpose.

2. As part of the consultative process, OPDIVs/STAFFDIVs shall submit to the United States Fish and Wildlife Service and the State wildlife agency the appropriate environmental documentation, if needed for the consultation, that describes the possible effects of the proposed action on a natural stream or body of water.

3. An OPDIV/STAFFDIV shall determine, through the consultative process, the means and measures necessary to conserve wildlife resources by preventing loss of and damage to such resources, as well as providing for the development and improvement of the wildlife resources in connection with the proposed action.

4. OPDIVs/STAFFDIVs shall give full consideration to the report and recommendations of the U.S. Fish and Wildlife Service and to any report of the State agency on the wildlife aspects of a proposed action. Any plans for the proposed action shall include such justifiable means and measures for wildlife purposes as the OPDIV/STAFFDIV finds should be adopted to obtain maximum overall project benefits. All reports and recommendations of the U.S. Fish and Wildlife Service wildlife agencies shall constitute an integral part of any environmental report prepared pursuant to the action.

5. Reports and recommendations of the Secretary of Interior or State wildlife agencies shall be incorporated into any environmental documents that may be associated with the proposed action. 16 U.S.C. 662(b).

6. No further action shall take place pending receipt of a report from the U.S. Fish and Wildlife Service and State wildlife agency.

30-40-40

Floodplain Management

A.

Purpose.

Executive Order 11988, Floodplain Management, 42 FR 26951 (1977), as amended by Executive Order 12148, FR 43239 (1979), 42 U.S.C. 4321 note, directs each Federal agency to avoid the long and short term adverse impacts associated with the occupancy and modification of floodplains, including the direct and indirect support of floodplain development, whenever there is a practicable alternative. Floodplains are those areas identified as such according to a Federal Emergency Management Agency (FEMA) floodplain map. Guidance for implementation of Executive Order 11988 is provided in the U.S. Water Resources Council Floodplain Management Guidelines, 43 FR 6030. See also FEMA's “Further Advice on Executive Order 11988 Floodplain Management” (GPO 1987).

B.

Definitions.

1.

Base Flood.

“Base Flood” means that flood which has a one percent of greater chance of occurrence in any given year.

2.

Floodplain.

“Floodplain” means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year.

3.

Critical Action.

“Critical Action” means any activity for which even a

slight chance of flooding is too great,

e.g.

elderly housing proposals.

C.

Responsibilities.

Each OPDIV/STAFFDIV has the responsibility under Executive Order 11988 to take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for:

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 affected land use, including but not limited to, water and related land resources planning, regulating, and licensing activities.

Each OPDIV/STAFFDIV shall evaluate the potential effects of any actions it may take in a floodplain in accordance with the procedures in this section. It must also ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management.

D.

Floodplain Determination.

Before taking an action, each OPDIV/STAFFDIV shall determine whether the proposed action will occur in a floodplain. OPDIVs/STAFFDIVs shall utilize the Flood Insurance Rate Maps (FIRMs) or the Flood Hazard Boundary Maps (FHBMs) prepared by the Federal Insurance Administration of FEMA to determine if a proposed action is located in a base or critical action floodplain. When a proposed action would be located in an area of predominantly Federal or State land holdings, and FIRM or FHBM maps are not available, OPDIVs/STAFFDIVs shall obtain information from the land administering agency (

e.g.,

Bureau of Land Management or Soil Conservation Service) or from agencies with floodplain analysis expertise.

E.

Integration With NEPA.

OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action in a floodplain in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a floodplain assessment, described in 30-40-40D, shall be included in the EA or EIS.

F.

Floodplain Assessment (Executive Order 11988).

1.

Proposed Action.

The floodplain assessment shall describe the nature and purpose of the proposed action and the reasons for locating the action in the floodplain.

2.

Floodplain Map.

A map of the affected floodplain indicating the location of the proposed action shall be included in the assessment.

3.

High Hazard Areas.

High hazard areas in the floodplain shall be delineated and the nature and extent of the proposed hazard shall be discussed.

4.

Floodplain Effects.

The effects of the proposed action on the floodplain shall be discussed in the assessment. The discussion shall include an evaluation of the long-and short-term effects of the proposed action on people, property, natural and beneficial floodplain values, and any other relevant direct or indirect effects.

5.

Alternatives and Mitigation Measures.

The floodplain assessment shall discuss alternatives to the proposed action that may avoid adverse effects and incompatible development in the floodplain, including the alternatives of no action or location at an alternate site. The assessment shall also discuss measures that mitigate the adverse effects of the proposed action.

6.

Conformity to Applicable State or Local Standards.

The floodplain assessment shall include a statement indicating whether the proposed action conforms to applicable State or local floodplain protection standards.

7.

Flood Insurance Program Standards.

An action taken in a floodplain must incorporate design features consistent with the standards in the Flood Insurance Program of the Federal Insurance Administration to minimize substantial harm to the floodplain.

G.

Public Review.

Circulation of draft environmental impact statements shall include the public and other interested individuals, including concerned Federal, non-Federal and private organizations. Interested parties shall have a period of 60 days for review and comment on draft environmental impact statements.

H.

Secretarial Approval.

No action shall take place without a finding by the HHS Secretary that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 requires siting in a floodplain. The action proposed for Secretarial approval shall be designed to minimize potential harm to or within the floodplain. The Secretary shall approve proposed actions requiring environmental impact statements on projects affecting floodplains.

I.

Notice of Finding

.

1.

Contents.

After Secretarial approval and prior to taking action, an OPDIV/STAFFDIV shall prepare and circulate a notice of finding containing an explanation of why the action is proposed to be located in a floodplain. The notice shall not exceed three pages and shall include a location map. The notice shall include (a) the reasons why the action is proposed to be located in a floodplain; (b) a statement indicating whether the action conforms to applicable State or local floodplain protection standards; and (c) a list of the alternatives considered.

2.

Public Review.

For programs subject to Executive Order 12372, the notice of finding shall be sent to the appropriate state and local reviewing agencies the geographic areas affected. A public review period of 30 days after the issuance of notice of finding shall be allotted before any action is taken.

J.

Licenses, permits, loans, or grants.

Each OPDIV/STAFFDIV shall take floodplain management into account when formulating or evaluating any water and land use plans and shall require land and water resources use appropriate to the degree of hazard involved. Adequate provision shall be made for the evaluation and consideration of flood hazards in the regulations and operating procedures for the licenses, permits, loan, or grant-in-aid programs that an OPDIV/STAFFDIV administers. OPDIVs/STAFFDIVs shall also encourage and provide appropriate guidance to applicants to evaluate the effects of their proposal in floodplains prior to submitting applications for Federal licenses, permits, loans, or grants.

K.

Authorizaiton or Appropriation Requests.

OPDIVs/STAFFDIVs shall indicate in any requests for new authorizations or appropriations whether the proposed action is in accord with Executive Order 11988 if the proposed action will be located in a floodplain.

30-40-50

Marine Protection, Research, and Sanctuaries Act of 1972

A.

Purpose.

Title III of the Marine Protection, Research and Sanctuaries Act prohibits Federal Departments from taking actions which will affect a Marine Sanctuary unless the Secretary of Commerce certifies that the activity is consistent with the purposes of the Act. Listings of sanctuaries are designated by the Secretary of Commerce and maps of sanctuaries appear in the Federal Register.

B.

Responsibilities and Consultation Requirements.

1. If the proposed action will create an environmental effect on a marine sanctuary, OPDIVs/STAFFDIVs shall prepare an appropriate environmental document and forward it to the Secretary of Commerce.

2. No further action shall take place unless and until the Secretary certifies that the action is consistent with the purposes of the Act.

30-40-60

Safe Drinking Water Act (Sole Source Aquifers)

A.

Requirement.

Section 1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)), provides for the protection of those aquifers which have been designated by the Administrator of the EPA as the sole or principal source of drinking water for an area. No commitment for Federal financial assistance (through a grant, contract, loan guarantee, or otherwise) may be entered into for any project which the Administrator determines may contaminate such aquifer through a recharge zone so as to create a significant hazard to public health. A commitment for Federal financial assistance may, if authorized under another provision of law, be entered into to plan or design the project to assure that it will not so contaminate the aquifer.

B.

Responsibilities and Consultation Requirements.

1. OPDIVs/STAFFDIVs shall determine if a proposed action will directly or indirectly affect a sole or principal source aquifer designated by the Administrator of EPA in accordance with section 1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).

2. If the action will affect a designated aquifer, OPDIVs/STAFFDIVs shall send the appropriate environmental document to the EPA Regional Administrator for a determination as to whether the proposed action may potentially contaminate the aquifer through its recharge zone so as to create a significant hazard to public health.

3. The action shall not proceed unless and until the Administrator of the Environmental Protection Agency determines that the proposed action will not contaminate the designated aquifer so as to create a significant hazard to public health.

30-40-70

Wetlands Protection

A.

Purpose:

Executive Order 11990, Protection of Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52 F 34617 (1987), 42 U.S.C. 4321 note, directs each Federal agency to minimize the destruction, loss, or degradation of wetlands and to preserve and enhance such wetlands in carrying out their program responsibilities. Consideration must include a variety of factors, such as water supply, erosion and flood prevention, maintenance of natural systems, and potential scientific benefits.

B.

Definitions.

-

Wetlands.

The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas.

C.

Wetlands Determination.

OPDIVs/STAFFDIVs shall utilize information available from the following sources when appropriate to determine the applicability of the wetlands protection requirements of this section:

1. U.S. Department of Agriculture Soil Conservation Service Local Identification Maps;

2. U.S. Fish and Wildlife Service National Wetlands Inventory;

3. U.S. Geological Survey Topographic Maps;

4. State wetlands inventories; and

5. Regional or local government-sponsored wetland or land use inventories.

D.

Responsibilities.

OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action in wetlands in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a wetlands assessment, described in 30-40-70E, shall be included in the EA or EIS.

E.

Wetlands Assessment (Executive Order 11990).

1.

Proposed Action.

The wetlands assessment shall describe the nature and purpose of the proposed action and the reasons for locating the action in the wetlands.

2.

Wetlands Map.

A map of the affected wetlands indicating the location of the proposed action shall be included in the assessment.

3.

Wetlands Effects.

The effects of the proposed action on the wetlands shall be discussed in the assessment. The discussion shall include an evaluation of the long- and short-term effects of the proposed action on the survival, quality, and natural and beneficial values of the wetlands, and any other relevant direct or indirect effects.

4.

Alternatives and Mitigation Measures.

The wetlands assessment shall discuss alternatives to the proposed action that may avoid adverse effects and incompatible development in the wetlands, including the alternatives of no action or location at an alternate site. The assessment shall also discuss measures that mitigate the adverse effects of the proposed action. No further action shall take place until the OPDIV/STAFFDIV makes a decision that the proposed action includes all reasonable measures to minimize harm to the wetlands as a result of the proposed action.

5.

Conformity to Applicable State or Local Standards.

The wetlands assessment shall include a statement indicating whether the proposed action conforms to applicable State or local wetlands protection standards.

F.

Public Review.

Circulation of draft environmental impact statements shall include the public and other interested individuals, including concerned Federal, non-Federal and private organizations. Interested parties shall have a period of 60 days for review and comment on draft environment impact statements.

G.

Secretarial Review.

No further action shall take place until the Secretary of HHS determines that there is no practicable alternative to construction in wetlands and that the proposed action includes all practicable measures to minimize harm to the wetlands. The Secretary shall approve proposed actions requiring environmental impact statements for new construction in wetlands.

H.

Licenses and Permits.

These requirements do not apply to the issuance to individuals of permits and licenses and the allocation of funds made to individuals.

30-40-80 Wild and Scenic Rivers Act

A.

Purpose.

The purpose of the Act is to preserve selected free-flowing rivers, along with their immediate environments, for the benefit of immediate and future generations. These include river components and potential components of the National Wild and Scenic River System and study areas designated by the Secretaries of Agriculture and Interior. (Environmental officers keep a list of these rivers and related study areas). Designations used to describe these components, or parts thereof, include the following: (1) Wild; (2) scenic; and (3) recreational.

B.

Requirement.

Section 7 of the Wild and Scenic Rivers Act (16 U.S.C. 1278), provides for the protection of the free-flowing, scenic, and natural values of rivers designated as components or potential components of the National Wild and Scenic Rivers Systems from the effects of construction of any water resources project. The Wild and Scenic Rivers Act provides that no license,

permit, or other authorization can be issued for a Federally assisted water resources project on any portion of a Wild and Scenic River or Study River (nor can appropriations be requested to begin construction of such projects) without prior notice to the Secretary of Agriculture and the Secretary of the Interior, and a determination in accordance with section 7 of the Act. The Secretary of Agriculture and the Secretary of the Interior have issued Federal agency consultation procedures that are codified at 36 CFR part 297.

C.

Definitions.

1.

Free-flowing.

“Free-flowing” is defined by section 16(b) of the Act as “existing or flowing in natural condition without impoundment, diversion, straightening, riprapping, or other modification of the waterway” (16 U.S.C. 1286(b)).

2.

Study Period.

“Study period” means the time during which a river is being studied as a potential component of the Wild and Scenic Rivers System and such additional time as provided in section 7(b)(ii) of the Act not to exceed 3 additional years during which a report recommending designation is before Congress, or such additional time as may be provided by statute.

3.

Study River.

“Study river” means a river and the adjacent area within one quarter mile of the banks of the river which is designated for study as a potential addition to the National Wild and Scenic Rivers System pursuant to section 5(a) of the Act.

4.

Water Resources Project.

“Water resources project” means any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act (41 Stat. 1063) as amended, or other construction of developments which would affect the free-flowing characteristics of a Wild and Scenic River or Study River.

5.

Wild and Scenic River.

“Wild and scenic river” means a river and the adjacent area within the boundaries of a component of the National Wild and Scenic Rivers System pursuant to section 3(a) or 2(a)(ii) of the Act.

D.

Responsibilities and Consultation Requirements.

When a proposed action will have an effect upon an environment within or including a portion of a component, potential component, or study area, program personnel shall send a notice to the Secretary of the Interior for review.

E.

Contents of Notice.

The notice shall include the following information:

1. Name and location of affected river;

2. Location of the project;

3. Nature of the permit or other authorization proposed for issuance;

4. A description of the proposed activity; and

5. Any relevant information, such as plans, maps, and environmental studies, assessments, or environmental impact statements.

6. The notice shall also provide any additional factual information that will assist the Secretary in determining whether:

(a) the water resources project will have a direct and adverse effect on the values for which a Wild and Scenic River or Study River was designated, when any portion of the project is within the boundaries of said river; or,

(b) the effects of the water resources project will invade or unreasonably diminish the scenic, recreational, and fish and wildlife values of a Wild and Scenic River, when any portion of the project is located above, below, or outside the Wild and Scenic River; or,

(c) whether the effects of the water resources project will invade or diminish the scenic, recreational, and fish and wildlife values of a Study River when the project is located above, below, or outside the Study River during the study period.

F.

Examples.

The following are examples of circumstances which can affect a river component or study area:

1. Destruction or alteration to all or part of the free-flowing nature of the river;

2. Introduction of visual, audible, or other sensory intrusions which are out of character with the river or alter its setting;

3. Deterioration of water quality; or

4. Transfer or sale of property adjacent to an inventoried river without adequate conditions or restrictions for protecting the river and its surrounding environment.

G.

Response.

If the Department of the Interior does not respond within 30 calendar days or states that the proposed action will not directly or adversely affect the area, the Department is in compliance with the review requirements of the Act. However, in those instances where the Department of the Interior does not respond, programs shall take care to always avoid or mitigate adverse effects on river components and study areas.

If the Department of the Interior determines that the proposed action will directly and adversely affect the area, no further action shall take place whenever the proposed action involves the construction of a water resources project.

The above requirements do not apply to types of actions excluded from the review process by appropriate Department of Interior or Agriculture regulations.

H.

Integration with NEPA.

The determination of the effects of a proposed water resources project shall be made in compliance with the National Environmental Policy Act (NEPA). To the extent possible, OPDIVs/STAFFDIVs should ensure that any environmental studies, assessments, or environmental impact statements prepared for a water resources project adequately address the environmental effects on resources protected by the Wild and Scenic Rivers Act, and that the Department of Agriculture is apprised of ongoing analyses so as to facilitate coordination and identification of Wild and Scenic River related issues.

To the extent practicable, impacts on Wild and Scenic River values will be considered in the context of other review procedures as provided by law. OPDIVs/STAFFDIVs are encouraged to consult with the Forest Service in order to identify measures which could eliminate any direct and adverse effects, thereby increasing the likelihood of securing consent.

Subject: National Environmental Policy Act (NEPA) Review

30-50-00 Background

30-50-05 Definitions and Acronyms

30-50-10 Applicability

30-50-15 Responsibilities

30-50-20 Purpose, Content, and Availability of Environmental Documents

30-50-25 Actions That Are Excluded from the Requirement to Prepare an Environmental Assessment

30-50-30 Actions Requiring Preparation of an Environmental Assessment

30-50-35 Categories of Actions Requiring Preparation of an Environmental Impact Statement

30-50-40 Environmental Assessments

30-50-45 Findings of No Significant Impact

30-50-50 Public Availability of Environmental Assessments and Findings of No Significant Impact

30-50-55 Notice of Intent and Scoping

30-50-60 Environmental Impact Statements

30-50-65 Contents of an Environmental Impact Statement

30-50-70 Public Involvement and Circulation of Environmental Impact Statements

30-50-75 Environmental Effects Abroad of Major Agency Actions

30-50-80 Reviewing External Environmental Impact Statements

30-50-00 Background

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370d, establishes policy and requirements governing all Federal Departments and agencies with respect to protecting the environment. This

chapter supplements specific requirements established by NEPA and by the associated implementing regulations promulgated by the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508). This chapter also establishes Department policy and procedures with respect to the implementation of NEPA and provides guidance to HHS Staff Divisions (STAFFDIVs) and Operating Divisions (OPDIVs) in establishing additional regulations for implementing NEPA that are unique to each OPDIV/STAFFDIV.

NEPA requires all Federal Departments and agencies to assess, as an integral part of their decision making process, the potential environmental impacts of their actions prior to initiation of those actions. NEPA establishes environmental policy, set goals (Section 101), and provides procedures (Section 102) for carrying out the policy. Specifically, Section 102(2)(C) of NEPA requires all agencies of the Federal Government to include an environmental statement “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *” The purpose of this and other requirements is to ensure that environmental information is available to public officials and citizens before Federal agencies make decisions to take actions which could significantly affect the quality of the human environment.

30-50-05 Definitions and Acronyms

A.

CEQ Regulations Definitions.

Definitions that apply to the terms used in this chapter are set forth in the CEQ regulations under 40 CFR part 1508. The terms and the sections of 40 CFR part 1508 in which they are defined follow:

Categorical Exclusion (40 CFR 1508.4)

Cooperating Agency (40 CFR 1508.5)

Cumulative Impact (40 CFR 1508.7)

Effects (40 CFR 1508.8)

Environmental Assessment (EA) (40 CFR 1508.9)

Environmental Document (40 CFR 1508.10)

Environmental Impact Statement (EIS) (40 CFR 1508.11)

Federal Agency (40 CFR 1508.12)

Finding of No Significant Impact (FONSI) (40 CFR 1508.13)

Human Environment (40 CFR 1508.14)

Jurisdiction by Law (40 CFR 1508.15)

Lead Agency (40 CFR 1508.16)

Legislation (40 CFR 1508.17)

Major Federal Action (40 CFR 1508.18)

Mitigation (40 CFR 1508.20)

NEPA Process (40 CFR 1508.21)

Notice of Intent (40 CFR 1508.22)

Proposal (40 CFR 1508.23)

Scope (40 CFR 1508.25)

Significantly (40 CFR 1508.27)

B.

Chapter 30-50 Definitions.

The following terms are defined solely for the purpose of implementing the supplemental procedures provided by this chapter and are not necessarily applicable to any other statutory or regulatory requirements. To the extent that a definition of one of these terms should conflict with a definition in an applicable statute, regulation or Executive Order, that statute, regulation or Executive Order definition shall supersede the GAM definition.

“Department” means the U.S. Department of Health and Human Services (HHS).

“Pollution Prevention” includes, but is not limited to, reducing or eliminating

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