# Environmental Planning Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A06-3078 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** April 4, 2006 - **Citation:** 71 FR 16790 ## Text DEPARTMENT OF HOMELAND SECURITY Environmental Planning Program AGENCY: Department of Homeland Security. ACTION: Notice of final directive. SUMMARY: The purpose of this Notice is to inform the public that the Department of Homeland Security (DHS or the Department) is issuing its final policy and procedures for implementing the National Environmental Policy Act of 1969 (NEPA) and related executive orders and requirements. This Notice also responds to the comments received on the draft Management Directive (draft Directive), published on June 14, 2004. DATES: This Directive will be effective on April 19, 2006. FOR FURTHER INFORMATION CONTACT: Mr. David Reese, Office of Safety and Environment, Department of Homeland Security, 202.692.4224. SUPPLEMENTARY INFORMATION: Table of Abbreviations CATEX—Categorical Exclusion CEQ—Council on Environmental Quality CFR—Code of Federal Regulations DHS—Department of Homeland Security Department—Department of Homeland Security EA—Environmental Assessment E.O.—Executive Order FEMA—Federal Emergency Management Agency FLETC—Federal Law Enforcement Training Centers FONSI—Finding of No Significant Impact FSE—Full Scale Exercise FR—Federal Register NEPA—National Environmental Policy Act ODP—Office of Domestic Preparedness ROD—Record of Decision U.S.C.—United States Code USCG—United States Coast Guard Table of Contents Background Scope and Applicability General Comments and Responses Section by Section Comments, Responses, and Other Changes Specific Comments on Categorical Exclusions and Responses Management Directive 5100.1, Environmental Planning Program Management Directive 5100.1, Appendix A, Timely and Effective Environmental Planning in the Department of Homeland Security Planning in the Department of Homeland Security Management Directive 5100.1, Glossary Background DHS has the mission to lead the unified national effort to secure the United States of America. It has the responsibility to prevent and deter terrorist attacks and protect against and respond to threats and hazards to the Nation. As a part of this mission, the Department ensures safe and secure borders, facilitates lawful immigrants and visitors, and promotes the free flow of commerce among nations. This Directive establishes policy and procedures to ensure the integration of environmental considerations into the unique mission of the Department. It outlines roles and responsibilities for compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and other laws and requirements for stewardship of the environment. This Directive also establishes a framework for the detailed, balanced, and systematic consideration of environmental stewardship in the planning and execution of DHS activities. NEPA is the basic charter and foundation for stewardship of environmental resources by the agencies of the Federal government within the United States. It establishes policy, sets goals, and provides a tool for carrying out national environmental policy. NEPA requires agencies to use all practical means within their authority to create and maintain conditions under which people and nature can exist in productive harmony and fulfill the social, economic, and other needs of present and future generations of Americans. 42 U.S.C. 4331. This Directive includes processes for preparing Environmental Assessments (EA), Findings of No Significant Impact (FONSI), and Environmental Impact Statements (EIS). It also includes procedures for DHS to establish new or revised Categorical Exclusions (CATEX). DHS will use this Directive in conjunction with NEPA, the Council on Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508, and other pertinent environmental laws, regulations, and Executive Orders (E.O.). The Department published a draft Directive and a request for comments in the Federal Register on June 14, 2004. 69 FR 33043; see also 69 FR 42760 (Jul. 16, 2004) reopening comment period. The draft Directive proposed DHS policy for meeting the requirements under NEPA, including a proposed list of categories of DHS actions excluded from further consideration under NEPA, known as categorical exclusions. More than 7,500 letters and e-mails were received during the comment period. The vast majority of those comments consisted of identical letters and e-mails, where only the name and address differed. The Department received fewer than 100 unique comments. The Department has posted all unique comments and an example of each identical form comment on the DHS public web site, listed below. These comments are categorized and discussed below. This final Directive incorporates clarifications and limitations added in consideration of the public comments. A copy of this publication, the draft Directive, all unique comments received during the comment period, examples of form comments, and a summary of the administrative record are available at http://www.dhs.gov/dhspublic/display?theme=13&content=5278. Scope and Applicability This Directive applies to all of DHS, including its components. Components may supplement this Directive, provided that any supplements are consistent with the Directive. This Directive shall prevail in case of any inconsistencies between this directive and supplementary procedures. Currently, FEMA has NEPA regulations, 44 CFR Part 10, and the U.S. Coast Guard has a Commandant's Instruction Manual on NEPA, 16475.1 series. These components will amend their procedures to conform to this Directive. General Comments and Responses The draft Directive contained proposed policy and procedures for DHS to comply with NEPA and ensure the integration of environmental considerations into mission planning and project decision making. It also proposed the means for DHS to follow the letter and spirit of NEPA and comply fully with CEQ regulations. Both the draft and final Directive encompass requirements in addition to NEPA and establish the DHS Environmental Planning Program. The final Directive contains a detailed set of policy and procedural requirements to implement NEPA and the environmental planning function in a reliable, timely, and cost-effective manner. Following is a discussion of the comments. Comments of a general nature are addressed first, followed by comments on specific sections of the Directive. Since there were many comments on specific proposed CATEXs, these comments and responses have been placed into a separate grouping and are addressed one-by-one in the last section of comments and responses. 1. Categorical Exclusions: Too Many and Too Broad. About 70 commenters noted that the Department's draft Directive had an exceptionally large number of components responsible for a vast array of activities and operations under its purview. It was generally argued that many of these activities have a clear potential for significant adverse environmental impacts. These comments indicated a concern that the draft ignored what some commenters defined as an accepted practice that the use of Categorical Exclusions be limited primarily to routine administrative actions. Some comments stated that the draft attempted to create a number of overly broad and vague Categorical Exclusions for activities with the potential for significant adverse environmental effects. Other comments noted that, while federal agencies are accorded a degree of deference in creating their Categorical Exclusions, they must still provide a sound and factually supported basis for finding that certain agency actions will not individually or cumulatively have a significant impact on the environment. Some commenters also generally argued that some proposed Categorical Exclusions go far beyond what is authorized by CEQ regulations and relevant case law. In response to these comments, DHS recognizes that the creation of a Cabinet-level Department from numerous agencies and elements of other agencies is certainly an historic and complex event. In addition, DHS was mandated by the Homeland Security Act to functionally integrate its activities to establish consistent business processes throughout the Department. Numerous functional areas such as financial management, procurement, human resources management, and asset management, either have or are actively completing the establishment of common rules and operating procedures throughout DHS. From an environmental planning perspective, this meant establishing a common set of policy, guidance, and implementing procedures for use by all DHS components. To respond to this challenge, DHS used a very lengthy and complex series of deliberations to create and support the CATEXs included in this NEPA Directive. The Council on Environmental Quality's Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act contemplates that CATEXs will serve as a tool for agencies to conserve time and effort by defining categories of actions that do not individually or cumulatively have a significant effect on the human environment and are therefore exempt from the requirement to prepare further analysis in an environmental assessment or an environmental impact statement. 40 CFR 1500.4(p). This Directive and the NEPA directives of most agencies include a list of CATEXs that extend beyond routine administrative actions. The Department empanelled a group of federal employees from its components with sufficient expertise and experience to identify such categories of actions most relevant to DHS, hereinafter referred to as the Panel. That Panel critically analyzed the actions within the categories that they identified to ensure that only actions with no potential for individual or cumulative significant impact would be included in the list of CATEXs. The Panel also took pains to ensure that the actions were sufficiently limited to actions for which the Department maintained a demonstrated history of successful performance with no significant effect on the human environment. The CATEXs were developed on the basis of an administrative record from the components that comprise the Department and the experiences of the Panel members. 2. Alleged Conflict between NEPA Scoping Requirements and Consultation Requirements under Section 106 of the National Historic Preservation Act. One set of comments stated that the scoping provisions that require involvement of other federal agencies, non-federal interests, and the general public in defining the scope of potential environmental impacts from a proposed activity do not adequately fulfill requirements to consult with federally-recognized Indian Tribes and Native Hawaiian organizations under Section 106 of the National Historic Preservation Act when the proposal may impact a historic property and could become a source of conflict. DHS disagrees. These comments refer to an issue that was not referenced, expanded, or limited by the draft Directive. Neither the CEQ regulations that implement NEPA nor the draft Directive prescribe a standard scoping process. Furthermore, the Advisory Council on Historic Preservation's regulations for implementing Section 106 of the National Historic Preservation Act, at 36 CFR part 800, provide for coordinating Section 106 reviews with the NEPA process or using the NEPA process to fulfill the requirements of Section 106. More specifically, 36 CFR 800.2(c)(2), requires consultation with federally recognized Indian Tribes and Native Hawaiian organizations in fulfilling Section 106 review requirements. The Department's Directive defines the need to coordinate with federally-recognized Indian Tribes and Native Hawaiian organizations during the NEPA process in Section 6. That policy is further reinforced in Sections 1 and 2 of Appendix A, which states that the Department's policy is to seek out and coordinate with other federal departments and agencies, tribal, state, and local governments, non-governmental organizations, and the general public early in the environmental planning process. Furthermore, Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” dated November 9, 2000, directs all federal departments to, among other things, “strengthen the United States government-to-government relationships with Indian tribes and establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications * * *” Each component in DHS provides the framework by which they consult and coordinate with tribes concerning their specific program areas, including any environmental planning activities that may involve tribes. 3. General Administrative and Editorial Changes. Names and titles of offices and positions have been changed to reflect the current organizational structure, program responsibilities, and nomenclature within DHS. The abbreviation used for the term “Categorical Exclusion” has been changed from “CE,” the term used in the draft, to “CATEX” to avoid confusion with other commonly abbreviated terms used in DHS. Other changes have been made in coordination with CEQ to clarify language to ensure that this Directive would conform to CEQ regulations. Redundancies have been eliminated. Grammatical changes, structural changes, and clarifications have been made that are not intended to change any of the draft's meaning or intent. Section By Section Comments, Responses, and Other Changes 1. Management Directive, Section 6.F. There were no comments on this specific section. However, language in this section has been changed to clarify that no actions will be taken that limit alternatives considered for any proposed action for which an EA or EIS process is being conducted. These changes would not change the obligation for DHS to ensure that the Record of Decision (ROD) and the FONSI are public documents and will reflect the final decision. 2. Appendix A, Section 2.6., Public Involvement. There were no comments on this section; however, the opening paragraph was modified to more clearly express DHS policy on public involvement in environmental planning. 3. Appendix A, Section 2.6.A, Public Involvement. There were no comments on this section; however, consideration of some comments on Appendix A, Section 4.0 resulted in changes here. The extent of public comment and involvement in the EA and FONSI process is defined in 40 CFR 1501.4(b) which states, “The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by section 1508.9(a)(1)” (where the referenced section refers to environmental assessments). Neither NEPA nor CEQ regulations prescribe a set period of public comment required in the EA and FONSI process—apart from the FONSI publication required in the special situations described in 40 CFR 1501.4(e)(2)—leaving it up to the agencies themselves to define the degree of public involvement deemed practicable under the circumstances. Appendix A, Section 2.6.A has been revised, in consultation with CEQ, to clarify that public involvement is required in the environmental impact evaluation process that would be documented in an environmental assessment under NEPA. Other changes have been made to clarify the relationship of this section to other sections in the Directive. 4. Appendix A, Section 3.2. paragraph B. There were no comments on this section; however, several commenters expressed a general concern over the potential for CATEXs to be applied to smaller repetitive actions in a manner that could avoid a more in-depth review under NEPA of the potential for significant cumulative environmental impacts. The wording of this section has been modified to more clearly state that the CATEXs are not intended to be used in this repetitive manner. 5. Appendix A, Section 3.2. paragraph C. Commenters objected to the treatment of “extraordinary circumstances” in connection with Categorical Exclusions. Categorical Exclusions are categories of actions that can be shown to have no potential for significant impact on the human environment under normal circumstances and would require no further analysis under NEPA. However, in recognition of the variety of situations where DHS may take action, DHS had proposed a series of extraordinary circumstances where an otherwise categorically excludable action may have potential for significant adverse impact to the human environment and would require further analysis under NEPA. Commenters claimed that the draft Directive erroneously used a significance test when legal precedent has established that a CATEX may not be used if there is the potential for “any adverse effect.” DHS disagrees. Upon further review of the language in this Directive, including consultation with the Council on Environmental Quality, DHS believes that the manner in which it will apply “extraordinary circumstances” in this Directive is in conformance with appropriate precedent. CEQ regulations specify that a CATEX may be used if there is no significant effect on the human environment, with exceptions to provide for those situations when there are “extraordinary circumstances.” 40 CFR 1508.4. Section 3.2 of the Directive clearly defines that there are to be three “tests” by which the application of any CATEX to a particular action are viewed on a case-by-case basis. Sub-section (C) within section 3.2 defines one of those tests as that of ensuring that no “extraordinary circumstances” exist. That particular test requires that, in a matter that might otherwise be subject to a particular CATEX, “* * * [n]o extraordinary circumstances with potentially significant impacts relating to the proposed action exist * * *” Therefore, if potentially significant impacts related to the proposed action exist, the CATEX may not be applied. The consideration of this and the other “tests” contemplated by Section 3.2 ensure that, where “* * * the proposed action does not meet these conditions or a statute does not exempt it or an emergency provision does not apply, an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) must be prepared before the action may proceed.” The concern addressed by the comments in this area suggests that the language in the Directive that states, “* * * [s]pecific actions that might otherwise be categorically excluded, but are associated with one or more extraordinary circumstances, should be carefully evaluated to determine whether a CATEX is appropriate * * *” would allow the application of a CATEX to a particular action with foreseeable significant impact on the environment even where not exempted by a statute or emergency provision. The wording of this section has been revised to ensure that DHS will evaluate whether extraordinary circumstances may exist and have a record of the consideration of those extraordinary circumstances. Likewise, the language of Section 3.3.B has been modified to clarify this intent. Subparagraph (4) in this section has been revised from a lengthy list of possible natural resources and other geographic designations to simply require that procedures for applying categorical exclusions take into account the potential to effect an environmentally sensitive area. The effect of this change is to lengthen the list of concerns that must be considered under this subparagraph. Consideration of the extraordinary circumstances contained in Subparagraph (4) was previously limited to only those subjects listed. The term “environmentally sensitive area” has been defined in the Glossary to be more comprehensive in its inclusion of various types of natural resources and geographic areas of special interest in an environmental impact evaluation process. The effect of this change is to ensure that a broader range of subjects will be addressed when Subparagraph (4) is used in consideration of extraordinary circumstances. A new subparagraph (11) has been added in consideration of public comments and to conform to CEQ regulations to ensure that CATEXs are not used in situations where a proposed DHS action is related to other actions with individually insignificant, but cumulatively significant, impacts. 6. Appendix A, Section 3.3.B, Record of Environmental Consideration. There were no specific comments on this section. This section has been revised to clarify the purpose and use of a Record of Environmental Consideration and to conform to the changes in Appendix A, Section 3.2.C, Extraordinary Circumstances. 7. Appendix A, Section 4.0, Environmental Assessments. Commenters urged DHS to adopt a policy that would favor seeking public comment on both Environmental Assessments and Environmental Impact Statements, especially where issues are likely to be controversial. Consideration of this recommendation resulted in several changes to Appendix A, section 2.6.A, as described earlier. Appendix A, section 4.0, has also been revised to more clearly reflect a policy of involving the public in EAs and to more clearly provide direction on the appropriate public involvement process. A new section 4.1 has been added to clearly describe the purpose of an environmental assessment and the former section 4.1 was renumbered to section 4.2, with some edits and clarifying language. The text that provided direction on alternatives, the internal review process within DHS, the FONSI, and the public involvement requirements has been moved to a new section 4.3, Considerations in Preparation of an EA or a Programmatic EA. 8. Appendix A, Section 4.3., Considerations in Preparation of an EA or a Programmatic EA . This is a new section of the Directive. Consideration of comments urging DHS to adopt a policy that would favor seeking public comment on Environmental Assessments resulted in the consolidation of information from several parts of the Directive into this new section and the addition of some clarifying language. The language in paragraphs A, E, and F now clearly emphasizes the policy to encourage public involvement in the preparation of an EA. This section now clearly describes its relationship to the public involvement factors listed in section 2.6, and provides options to achieve the public involvement policy. The legal importance of the FONSI and any mitigation measures that may be in the FONSI have been clarified. The responsibility of the agency to implement mitigation measures contained in a FONSI has also been more clearly stated. The sections following 4.3 have been renumbered to 4.4, 4.5, and 4.6, with appropriate editorial and language clarifications, to reflect the addition of the two new sections 4.1 and 4.3. 9. Appendix A, Section 6.2, Classified or Protected Information. Many comments stated that the draft Directive asserted unqualified authority to keep potentially large amounts of information on the environmental impacts of DHS operations secret and out of public view in contravention of the disclosure requirements of NEPA and CEQ regulations. The commenters argued that DHS should limit the Directive's nondisclosure provisions strictly to information that unambiguously qualifies for withholding pursuant to a Freedom of Information Act (FOIA) exemption. They further contended that to do otherwise would violate the provisions of NEPA and CEQ regulations governing the disclosure and nondisclosure of information. The comments also conveyed concern that certain provisions of the draft Directive, as well as new categories of information endorsed in the draft Directive, such as Critical Infrastructure Information (CII) and Sensitive Security Information (SSI), will be used to withhold information about the environmental impacts of DHS operations from the public. Some comments argued specifically that the manner in which CII and SSI were applied in the draft Directive exceeded the statutory mandate. In general, these comments claimed that the draft Directive was seeking to unacceptably restrict currently available types of information relevant to the health, safety, and well-being of the public in violation of the spirit and letter of NEPA. The Department carefully reviewed the comments received regarding public disclosure of information in environmental impact assessments and other documents prepared under NEPA and determined that the intention of the initial formulation of policy required clarification. DHS intends to comply with all applicable statutes and regulations aimed at securing the homeland and making environmental documents publicly available. The Department has many responsibilities, including the protection of certain information under statutes such as the Homeland Security Act, 6 U.S.C. 101, the Aviation Transportation Security Act, 49 U.S.C. 114, and the Maritime Transportation Security Act, 46 U.S.C. 701. The Department also has responsibilities under FOIA, 5 U.S.C. 552, to make information available to the public. DHS will appropriately share information that was relied upon to formulate decisions that have environmental implications. DHS recognizes that there may be instances where we cannot disclose all information that supports environmental determinations because the information is otherwise protected from disclosure under the mandates that the Department must follow. For example, classified information may not be released pursuant to FOIA. See 5 U.S.C. 552(b)(1). Likewise, SSI and Protected CII are exempted from disclosure under FOIA, pursuant to 5 U.S.C. 552(b)(3). See 49 U.S.C. 114(s), 49 CFR part 1520, 6 U.S.C. 133(a), 6 CFR part 29. Other information will be available to the public in accordance with FOIA. Section 6.2 has been revised to clarify that FOIA will be followed in public disclosure of environmental impact assessments and other documents prepared under NEPA. Specific Comments on Categorical Exclusions and Responses Categorical Exclusion A4 . CATEX A4 governs certain administrative and regulatory activities. This CATEX has been revised, in consultation with CEQ, in order to avoid the potential for confusion in its application and to ensure that it is not applied to the development of documents that may recommend activities with potential to significantly impact the quality of the human environment. Specifically, the Department has limited the types of actions contemplated by this CATEX to ensure that if activities under this CATEX result in proposals for further action, this CATEX may only apply if those proposals are already contemplated by another DHS CATEX. Upon further review, it was found that this CATEX could be interpreted in a manner to include the development of documents containing proposals with potential to significantly impact the quality of the human environment. In particular the development of documents, such as those cited in the examples, could be interpreted broadly to include documents such as reports on levels of business activity or plans for physical infrastructure development that may have greater potential to significantly impact the quality of the human environment. The Department intends that the change will clarify the narrow focus of this CATEX by expressly excluding from its contemplation the development of any proposals for actions where the actions themselves would not be covered by a CATEX. Categorical Exclusion A6. 1 This CATEX was the subject of comments concerning: (1) The references to waste disposal and (2) public information regarding the use of chemicals and low level radio nuclides for analytical testing and research. Commenters expressed concern that the analysis of impacts from waste disposal for permitted landfills may have been done in the past, but that may not account for new waste. Commenters also stated that using the existing categorical exclusions from the Federal Emergency Management Agency and the United States Coast Guard as a basis for this Categorical Exclusion was not appropriate, since those CATEXs were limited to procurement and storage of such materials and not to disposal. Commenters also expressed concern that the public should not be limited in its ability to access information regarding the use of chemicals and low level radio nuclides for analytical testing and research. One comment, for example, wanted DHS to demonstrate or document how “* * * Chemicals and low level radio nuclides for analytical testing and research * * *” are being used safely. 1 The proposed categorical exclusion A5 in the draft Directive was deleted in this final version. All subsequent categorical exclusions in the A section were renumbered, beginning with the current categorical exclusion A5, to reflect this deletion. To address the concern that the analysis of impacts from waste disposal for permitted landfills may have been done in the past, but that may not account for new waste, DHS included language in example (g) that limits this CATEX to apply to only activities of waste disposal in established, permitted landfills and authorized facilities; thereby, emphasizing that the Department is held to all of the same requirements that are applicable to commercial and other federal generators of non-hazardous waste. To address the concern that existing CATEXs from the Federal Emergency Management Agency and the United States Coast Guard were not appropriate to use as a basis for this CATEX, the following explanation is provided. During the development of these CATEX, the Panel found that various components of the Department, procure non-hazardous goods and services and store, recycle, and dispose of non-hazardous goods during the normal course of their activities in a manner like that of FEMA and the United States Coast Guard. Activities of a similar nature, scope, and intensity were found to be common throughout the Department in both administrative and operational activities. The vast majority of procurements, in conformance with procurement priorities, were found to consist of commercially available goods and services. A more limited number of procurements were for goods that were provided by commercial sources specifically for military (which could include the U.S. Coast Guard) or law enforcement purposes. Unique procurements were extremely infrequent and mostly adaptations of commercially available goods and services. It was also noted that other agencies have CATEX for similar activities that are sufficiently descriptive such that it could be determined that they included a much broader range of activities and encompassed activities of generally greater scope and intensity than any in DHS. In addition, all federal agencies, with very few limitations, must meet the same requirements to protect the environment. For example, the volume of goods and services procured and wastes disposed by other agencies dwarf those of DHS and are performed under the same regulatory policies with no significant impacts to the quality of the human environment. To address the concern that the public should not be limited in its ability to access information regarding the use of chemicals and low level radio nuclides for analytical testing and research, DHS modified Example (e) within this CATEX to further define “analytical testing and research” by clarifying that the intent for including examples of those types of non-hazardous materials would be “for laboratory use” and would thus be subject to the detailed requirements for the handling of such materials in established laboratories and similar facilities. Changes to Section 6 of the Directive, described elsewhere in this Notice, will also address this concern. Categorical Exclusion A7. 2 When A7 was published in the draft Directive, it was the subject of comments concerning the availability of public information generally. The Department considered the comments regarding public information and these concerns are addressed in the Department's response to comments on section 6 of the Directive. 2 The proposed categorical exclusion A5 in the draft Directive was deleted in this final version. All subsequent categorical exclusions in the A section were subsequently renumbered to reflect this deletion. Upon consideration of the scope of this CATEX, two other changes were made. A new limitation was added to state that “If any of these commitments result in proposals for further action, those proposals must be covered by an appropriate CATEX” to ensure that, if surveys or other actions contemplated under these CATEX result in recommendations for further action, those further actions will be appropriately evaluated under NEPA. Example (c) was modified and limited by removing the phrase “Site characterization studies and environmental monitoring, including siting, construction, operation, and dismantling or closing of characterization and monitoring devices * * *” from the descriptive examples to ensure that this CATEX was limited to audits, surveys, and data collection of a minimally intrusive nature. These additions and changes will better address the studies and other administrative activities contemplated by this CATEX. Categorical Exclusion B2. CATEX B2 was the subject of comments concerning the danger to the environment raised by access to observation posts. The chief concern expressed was regarding the risk that establishment of and access to observation posts might pose to the endangered Sonoran Pronghorn antelope. Specifically, one representative comment stated that “* * * a well-established record overwhelmingly demonstrates that construction, use of, and access to such observation posts is clearly not appropriate for the [categorical exclusion].” The Department considered the comments and concluded that this CATEX does not encompass the development of new access roads or observation posts. To emphasize the Department's concern in this area, the Panel specifically limited the CATEX to, “* * * existing roads or established jeep trails.” In order to further stress the intent of the Department that this CATEX not be extended to areas where there is potential for significant impacts on the quality of the human environment, the language of this CATEX was modified to expressly limit the use of jeep trails to those established by a governmental authority which would have shared or primary responsibility for regulating the roads or trails. In addition, section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that must be reviewed when applying this CATEX to a specific program or activity within DHS. These conditions and extraordinary circumstances were developed because, while the vast majority of DHS activities in this category do not have potential for significant impacts to the environment, activity proponents (Proponents) within DHS need to be alert for rare and unique conditions that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of DHS decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. The Directive now contains language that clearly and explicitly prevents the use of the CATEX where there is “A potentially significant effect on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, or Magnuson-Stevens Fishery Conservation and Management Act.” Categorical Exclusion B4. This CATEX was the subject of comments regarding the reference to training on specialized equipment. Specifically, the comments stated that it should be limited to those activities that do not disturb the surface in any way and have no potential to disturb the environment. The Department considered the comments regarding the reference to training, noting that there existed redundant coverage of training with CATEX G1. The references to training activities and training activity examples have been deleted from this CATEX. Responses to comments on CATEX G1 further address the concern regarding the reference to training on specialized equipment. Categorical Exclusion B5. This CATEX was changed from the text published for public comment to clarify that the phrase “* * * Support for community participation projects * * *” was intended to mean support for and participation in community projects. The Department is inherently dependent upon community involvement in providing the homeland security services required of it. The public is the key customer, beneficiary, and stakeholder for the products and services that the Department provides. It is essential that the Department engage in civic and community events that both serve the public and common good, as well as provide the Department with access to and credibility with its private sector customers. This change clarifies the nature of events and actions contemplated by this CATEX that may be undertaken for such purposes. This CATEX was also changed to limit the nature of activities contemplated by adding the phrase “* * * that do not involve significant physical alteration of the environment * * *”. Although this aspect of this CATEX was not the subject of any public comments, it was determined that this limitation would serve to focus the activities undertaken by the Department and its components within this CATEX on those clearly lacking the potential to significantly impact the quality of the human environment. Categorical Exclusion B6. Although not the subject of any public comments, this CATEX for the approval of recreational or public activities or events at a location typically used for that type and scope of that activity was specifically limited to ensure that the activities contemplated under this CATEX would not involve significant physical alteration of the environment. This was done to emphasize that this CATEX is not to be applied if there is potential for significant environmental impact. Categorical Exclusion B8. CATEX B8 was the subject of comments regarding NEPA review of security equipment. Specifically, the comments generally stated that there are many security devices including x-rays and detection devices that include the use of dangerous chemical, biological, and radiological substances. The comments expressed the concern that the evaluation and disposal of these devices could pose an environmental risk. Security equipment used within the department must meet the appropriate requirements of the Nuclear Regulatory Commission (NRC), the Food and Drug Administration (FDA), or the Federal Communications Commission (FCC). In addition, most of the security equipment consists of commercially available products that are also in use by private industry and other government agencies. Some of the security equipment contains trace amounts of chemical or radiological substances or produce X-rays as part of the screening process. These chemical and radiological substances and X-rays are encapsulated, shielded, and secured within the interior of the equipment. All of the Department's security systems must meet federal requirements for allowable levels of radiation emissions. There are no biological substances in the security equipment. In addition, all components within the Department that use these types of equipment perform periodic radiation surveys or wipe tests of all X-ray producing equipment or equipment that contains a small radioactive source to ensure compliance with 21 CFR 1020.40, Cabinet X-ray Systems, and NRC licensing requirements. The systems are also surveyed and inspected whenever they are relocated or maintenance is performed on the X-ray components and shielding. Disposal of security equipment is consistent with Federal Property Management Regulations found at 41 CFR 101 and 102. Furthermore, DHS is also required to minimize disposal through maximum reutilization and specialized sales, and will ensure that maximum attainable recycling and recovery are achieved in accordance with the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992, and participation in the Department of Energy's Homeland Defense Equipment Reutilization (HDER) Program. DHS has an agreement with DOE to refurbish, calibrate, and issue radiological detection equipment to local jurisdictions that request to participate in the HDER Program. No radioactive test sources are issued to local jurisdictions with this equipment, thereby limiting the potential for any radiological contamination. If DOE determines that equipment is not fit to refurbish, DOE is responsible for the equipment's disposition. This CATEX was changed to further demonstrate that the Department must contemplate applicable requirements to protect the environment when determining whether the removal or disposal of security equipment to screen for or detect dangerous or illegal individuals or materials would have the potential to significantly impact the quality of the human environment. Categorical Exclusion B9. CATEX B9 was the subject of comments regarding the temporary use of barriers and jersey walls. Specifically, comments sought clarification of the term “temporary.” “Temporary,” as contemplated in this CATEX, means that the barrier is easily installed with no need to disturb soils or the surrounding areas, and that it can be easily removed or moved to another area. Additional comments indicated that “temporary” should be limited to a term of time, with a time period of a week or less. Comments on CATEX B9 also included concerns regarding: (1) The inclusion of diver/swimmer devices that could harm marine species and habitat, (2) the evaluation of blast/shock impact resistant systems in manners that could pose a risk to migratory birds, endangered species, and air quality, and (3) the reference to remote video surveillance systems that could cause significant surface disturbance. The Department does not deem “temporary” regarding the use of barriers, fences, and jersey walls to mean one week or less. The term temporary is used by the Department to refer to structures that are not permanent and that, depending upon mission concerns, are eventually removed. The Department views the reference to the temporary use of barriers, fences, and jersey walls as sufficiently narrow in that only barriers, fences, and jersey walls on or adjacent to existing facilities are included in B9. A barrier, fence or jersey wall attached to, or set adjacent to, an existing facility will not normally have an adverse effect on the natural environment since the construction and location of the barrier will normally take place on land that has already been disturbed or built upon; consequently, the text has been clarified by adding “or on land that has already been disturbed or built upon”. In addition, this CATEX has been modified to emphasize that removal and disposal must be in compliance with applicable requirements to protect the environment. In response to the concern that activities and examples under this CATEX may adversely impact the environment, the Department notes that section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of DHS decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. This CATEX was changed to further demonstrate that the Department must contemplate applicable requirements to protect the environment when determining whether the removal or disposal of physical security devices or controls to enhance the physical security of existing critical assets would have the potential to significantly impact the quality of the human environment. Finally, the phrase, “* * * for land based and waterfront facilities,” was added to qualify, “* * * blast/shock impact-resistant systems,” within the list of devices and controls to limit and clarify the intent of the CATEX. Categorical Exclusion B11 . 3 This CATEX was the subject of comments regarding the impact of routine monitoring patrols. Specifically, the comment indicated concern that routine monitoring patrols can have an impact on the environment depending on the intensity and number of persons involved in the patrols. The comment argued that this concern is particularly important in the case of patrols occurring in sensitive areas such as wilderness areas that may be habitat to endangered species. 3 The proposed categorical exclusion B10 in the draft Directive was deleted in this final version. All subsequent categorical exclusions in the B section were renumbered, beginning with the current categorical exclusion B10, to reflect this deletion. The Department considered the concerns associated with this comment and noted that due to their generally more remote and undeveloped state, protected wilderness areas, national wildlife refuges, national forests, national monuments, marine sanctuaries, or critical habitat for marine mammals or endangered species tend to attract illegal entrants, smugglers, and potential terrorists who are seeking to avoid detection. The volume and frequency of this illegal activity in these environmentally sensitive areas results in harm to the natural resources that these areas have been set aside to protect. The patrols contemplated by this CATEX could serve as a deterrent to individuals who might otherwise harm sensitive natural resources. In any case, this CATEX could not be used for patrol activities that may be associated with extraordinary circumstances. DHS considered the concern that routine monitoring patrols under this CATEX may have a significant effect on the environment, in particular wilderness areas and critical habitat for endangered species. Section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that activity proponents need to be alert for rare and unique conditions associated with routine monitoring patrols that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of the DHS decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion D1. This CATEX was the subject of comments regarding the term, “minor renovations and additions.” Specifically, the comment expressed the concern that activities taking place outside of a building may have impacts on sensitive coastal resources that may be adjacent to a project. The comment expressed the desire that the categorical exclusion be limited to projects that are not located near such resources. DHS considered this concern regarding the potential for sensitive coastal resources adjacent to a project. Section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA; more specifically, subparagraph (4) of section 3.2 states that DHS Proponents need to be alert for a potentially significant effect on an environmentally sensitive area. An environmentally sensitive area is defined in the Glossary to include coastal zones and other important natural resources that may be present in coastal areas. This evaluation would include not only the immediate effect of the Department's decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. This CATEX was changed in that the example, “* * *extending an existing roadway in a developed area a short distance,” was deleted to ensure that its application would not extend to DHS activities that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion D3. This CATEX was the subject of comments regarding: (1) pest control activities, and (2) the impact of repair and maintenance activities on sensitive coastal areas. The comment focusing on pest control activities expressed concern that there exists the need for restrictions on pest control activities to avoid the potential for a significant impact on endangered species, groundwater, and public health. DHS considered the concern with pest control activities and notes that the reference to pest control was only an example of the type of activity envisioned by the CATEX. In providing examples, the Department does not seek to extend the CATEX to actions including extraordinary circumstances that may result in the activity having significant environmental effects. However, in response to these comments, the wording of this CATEX was narrowed to clarify its application to Department-managed properties. Pest control activities that may be conducted at Department-managed properties would be incidental to the management of the facility for mission requirements. DHS does not have a natural resources management mission that may require the general eradication of pests. Typical pest control activities would consist of but not necessarily be limited to those actions necessary to meet health requirements in and around cafeterias and residential facilities, actions to maintain the integrity of structures, or the Department's participation as one of many other property managers in larger pest control programs run by other Federal or state agencies. DHS also considered the comment concerning the impact of repair and maintenance activities on sensitive coastal areas. Section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA; more specifically, subparagraph (4) of section 3.2 states that DHS Proponents need to be alert for a potentially significant effect on an environmentally sensitive area. An environmentally sensitive area is defined in the Glossary to include coastal zones and other important natural resources that may be present in coastal areas. This evaluation would include not only the immediate effect of the Department's decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion D5. This CATEX was the subject of comments regarding dredging. Specifically, several comments suggested that dredging activities can have a significant effect on marine and riparian habitats, effecting endangered species, critical habitat, water flow, flooding, waste management, and a host of other environmental concerns. Additionally, some commenters suggested limiting this categorical exclusion to the United States Coast Guard. The Department notes that its components do not generally have independent authority to conduct maintenance dredging without complying with the many laws and requirements established to protect the environment. This exclusion from further environmental analysis under NEPA is adequately limited by the need to secure applicable permits and any required approval for a disposal site. In the process of securing these permits, agencies such as the Army Corps of Engineers and the Environmental Protection Agency, as well as various state agencies, would perform independent environmental reviews of proposed DHS maintenance dredging activities. It is also noted that the U.S. Coast Guard maintenance dredging operations, which are the greatest in scope and intensity of any of these types of activities within DHS, have been conducted for many years without significant impact to the human environment. DHS considered this concern regarding the potential for dredging activities to have a significant effect on various environmental resources. Section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. More specifically, these conditions and extraordinary circumstances include consideration of the potential for significant effects on marine and riparian habitats, endangered species, critical habitat, water flow, flooding, waste management, and various other environmental concerns. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion E1. CATEX E1 was the subject of a comment regarding facilities that cross tidal, coastal, or navigable waters. Specifically, the comment suggested that the activities contemplated by this categorical exclusion are not of concern in upland areas; however, if any of the facilities cross tidal, coastal, or navigable waters there is the potential for environmental impacts. The Department considered this comment and notes that its elements do not have independent authority to conduct activities without complying with the many laws and requirements established to protect the environment. This exclusion from further environmental analysis under NEPA is adequately limited by the need to secure applicable permits and any required approvals from the appropriate federal, state, and local regulatory agencies. However, section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. More specifically, Appendix A, section 3.2, subparagraph (4) states that DHS Proponents need to be alert for a potentially significant effect on an environmentally sensitive area. An environmentally sensitive area is defined in the Glossary to include coastal zones, tidal, coastal, or navigable waters, and other important natural resources that may be present in coastal areas. An evaluation of these extraordinary circumstances would include not only the immediate effect of the Department's decision, but also the potential environmental effects that may indirectly result from implementing that decision and the cumulative effects of the decision on the quality of the human environment. Categorical Exclusion E2. CATEX E2 was the subject of comments expressing concern regarding the precise definition of, “developed area” or “previously disturbed site” which appear in paragraph (b), and the potential for this categorical exclusion serving as a loophole permitting an infinite amount of construction. The Department considered the comment regarding the definitions of “developed area” or “previously disturbed site.” The comment specifically addressed wetland resources, stating that it was reasonable to believe that wetlands capable of restoration might be considered “disturbed areas.” The comment explains by way of example that any such disturbance of a wetland in a particular state that was not related to restoration would possibly be inconsistent with the enforceable policies of the federally-approved Coastal Management Program within that state. In response to that concern, the Department modified the text by replacing the phrase, “* * * local planning and zoning standards,” with the phrase, “* * * Federal, State, tribal, and local planning and zoning standards and consistent with federally approved state coastal management programs” as a condition precedent to any action taken under this CATEX. The Department also considered the concern that this CATEX might be read to permit an infinite amount of construction as long as it could be artfully tailored to meet or to allegedly meet the specified criterion. In response, the Department makes reference to section 3.2 in Appendix A of the Directive which contains a list of conditions and extraordinary circumstances that must be reviewed in the application of this CATEX to a specific program or activity within the Department. These conditions and extraordinary circumstances were developed in recognition that, while the vast majority of the Department activities in this category do not have potential for significant impacts to the environment, activity Proponents within the Department need to be alert for rare and unique conditions that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of the Department's decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. Categorical Exclusion E4. CATEX E4 was the subject of comments expressing concern regarding the destruction or disruption of adjacent habitat during demolition activities. The Department considered the comment regarding potentially significant impacts on habitat areas adjacent to demolition activities. The comment specifically expressed a concern that the categorical exclusion needs to make provisions to prevent the destruction or disruption of adjacent habitat during demolition activities. The comment asserts that while activities may be otherwise in compliance with regulations compliance does not ensure that projects will cease when they have a significant effect on the environment. In response to the concern that activities under this CATEX may adversely impact adjacent habitat or may otherwise have a significant effect on the environment, the Department notes that section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that activity Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of the DHS decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion E5. CATEX E5 was the subject of comments expressing concern regarding actions that might cause imbalance to a stable ecosystem. The comment specifically addressed the concern that natural resource management activities might actually imbalance natural ecological functions and cause further environmental problems. The comment stated that restoration often causes short-term adverse effects in order to gain long-term beneficial effects and asserts that NEPA analysis is necessary to balance these competing effects in different timeframes. In response to these comments, the Department modified the text published for public comment by replacing the phrase, “* * * to enhance native flora and fauna,” with the phrase, “* * * to aid in the maintenance or restoration of native flora and fauna,” and added the limiting term, “* * * and control of non-indigenous species” as a natural resource management activity category within this CATEX. The Department also clarified the scope of this CATEX by adding the limiting term, “* * * on Department managed property,” to clarify that this CATEX is limited to property under the control of the Department. DHS made these changes to clarify that DHS is not a large land managing agency and the scope of activities contemplated would not encompass large scale land management activities, but would be limited to those properties where DHS had direct management responsibilities. In response to the concern that activities under this CATEX, such as restoration, may cause short-term adverse effects in order to gain long-term beneficial effects, procedures in the Directive require consideration of extraordinary circumstances when this CATEX would be applied to a specific action. Section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that activity proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. This evaluation would include not only the immediate effect of the DHS decision, but also the potential environmental effects that may indirectly result from implementing the decision and the cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion E6. The Department received numerous comments to this CATEX asserting that the proposed categorical exclusion should be clearly limited to roads that would not cause new surface disturbance. The comments noted that road construction can have significant impact on the environment by increasing erosion, contaminated runoff, and fragmenting wildlife habitat. The comments suggest that the reference to “previously disturbed areas” needs clarification. In response to the comments, this CATEX was significantly revised and narrowed in scope. The comments submitted for this categorical exclusion noted that the important criterion to determine the potential for significant environmental impact was not the extent of prior disturbance, but rather the degree of environmental sensitivity. The Department recognizes that new road construction is highly controversial, and accordingly modified this CATEX by limiting the term “* * * construction or reconstruction,” to read, “* * * reconstruction.” Furthermore, Section 3.2 in Appendix A of the Directive, contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. In particular, the extraordinary circumstances would require the need to be alert for a potentially significant effect on an environmentally sensitive area in the application of this CATEX. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion E7. The Department received a general comment regarding this and several other CATEXs that essentially asserted that the Department maintained a relaxed threshold for what constitutes information that has no significant effect on the human environment. The comment referenced this categorical exclusion concerning construction of trails as an example of that relaxed threshold. In response to these comments, the Department first makes reference to the specific limitation in the CATEX which limits its application to construction of trails in non-environmentally sensitive areas where run-off, erosion, and sedimentation during construction are capable of mitigation through implementation of Best Management Practices. Furthermore, the Department references Section 3.2 in Appendix A of the Directive, containing a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion E9. CATEX E9 was deleted as redundant in that all of its contemplated activities were included in other proposed, and now finalized, CATEXs. Wells for drinking water, sampling wells, and watering landscaping are included in E2 or E3. Septic systems are not built independent from other facilities and are therefore included in the activities described in E2, D3, or D4. Field instruments, such as stream-gauging stations, flow-measuring devices, telemetry systems, geo-technical monitoring tools, geophysical exploration tools, water-level recording devices, well logging systems, water sampling systems, and ambient air monitoring equipment are included in E3. Categorical Exclusion F1. This CATEX was clarified to more accurately define its intent. It is more accurate to limit the actions contemplated to those applicable to hazardous materials and the relevant requirements and to provide a separate CATEX for actions related to the handling and disposal of hazardous waste. In order to ensure that this CATEX was sufficiently limited in that fashion without expanding or modifying its intended scope, the CATEX published for notice and comment as F1 has been limited by defining it as “Categorical exclusion F1: Routine procurement, transportation, distribution, use, and storage of hazardous materials that comply with all applicable requirements, such as Occupational Safety and Health Act (OSHA) and National Fire Protection Association (NFPA) requirements. The Department received a comment on CATEX F1 that was related primarily to hazardous waste disposal as opposed to hazardous materials usage. That comment will be addressed in CATEX F2. Categorical Exclusion F2. The Department received a comment on the CATEX originally published as F1, asserting that no standard exists by which to measure the routine use of hazardous materials/waste. Specifically, the comment stated that absent a deeper explanation of the activities being excluded, this categorical exclusion could easily become a rubber stamp to nearly all agency activities with hazardous waste. The comment expressed the additional concern that a categorical exclusion for these activities could mask the cumulative effects of routine hazardous waste use at agency facilities. DHS considered this comment and separated hazardous waste handling and disposal into CATEX F2 with specific limitations to assure compliance with appropriate hazardous waste handling and disposal requirements. In response to the concern over cumulative effects, section 3.2 in Appendix A of the Directive contains a list of conditions and extraordinary circumstances that were developed in recognition that Proponents need to be alert for rare and unique conditions in the application of this CATEX that may require more extensive evaluation of the potential for environmental impacts under NEPA. In particular, this evaluation would include not only the immediate effect of the Department's decision, but also the potential environmental effects that may indirectly result from implementing the decision and the potential cumulative effects of the decision on the quality of the human environment. These extraordinary circumstances are established as criteria to ensure that this CATEX would not be applied to any activity that would have the potential to significantly impact the quality of the human environment. Categorical Exclusion F3. The Department received a comment asserting that the former categorical exclusion F3 should be deleted because it excludes detection and scanning devices that, in sufficient numbers or with sufficient radiological effects, could pose a significant threat to the environment and public health. The Department also received a comment asserting that the former categorical exclusion F2 was too broad since it does not provide for an exception for devices with a significant amount of hazardous or radiological risk and/or waste, nor does it set a limit for the cumulative use of such devices. The Department considered these comments and realized that clarification was required. In addition, further review found that the former CATEX F2 and F3 language referencing the use of instruments that contain hazardous, radioactive, and radiological materials and the examples provided was somewhat redundant. Consequently, the CATEX that was originally published as CATEX F2 has been combined with the CATEX that was originally published as CATEX F3 and additional limiting language has been added to ensure that DHS activities contemplated by this CATEX meet all manufacturer specifications, as well as comply with all requirements to protect the environment. It is important to note that DHS meets all safety parameters for radiological devices as provided within the NRC license for those devices. In addition, DHS takes extra precautions with these devices, when installed, to ensure that these devices are separated by distance from each other, the operator, and the owners of the property being examined in conformance with the NRC license and to avoid potential for threats to the environment and public health. Furthermore, DHS does not accumulate these types of equipment in central storage, maintenance, or distribution facilities. No evidence of cumulative effects has been demonstrated from DHS uses of these types of equipment. Categorical Exclusion G1. Commenters agree with the language proposed that limited the application of this CATEX to training exercises using live chemical, biological, and radiological agents to designated facilities, but contend that this does not go far enough. Regardless of the facility, they believe the use of live agents cannot be said to inherently have no potential for significant environmental impacts. At a minimum, such activities should require a review of extraordinary circumstances and the preparation of a Record of Environmental Consideration. DHS, in consultation with the Council on Environmental Quality, considered the comments regarding the potential effects of training activities with live agents. The language of this CATEX has been modified to clarify that it does not apply to training that involves use of live chemical, biological, or radiological agents except when the training is conducted at a location designed and constructed to contain such materials. Construction and operation of these types of facilities remains subject to review under NEPA. Categorical Exclusion G2. One commenter believed that references to “conducting” national, state, local, or international training exercises should be deleted. While design and development for readiness exercises may not significantly impact the environment, actually conducting them may and the current language of “projects” or “activities * * * to * * * conduct * * *” could be interpreted as including the actual operation of the exercise. The commenter stated that the existing Federal Aviation Administration CATEX allowing for planning grants does not support an exemption for conducting readiness activities, nor does the Army CATEX for emergency or disaster assistance provide for the proposed CATEX. The commenter also stated that perhaps the intent was not to cover the actual exercises themselves; rather, the documents providing for them; however, this is not what the language provides. DHS considered the comments regarding the potential for significant environmental impact from the conduct of national, state, local, or international training exercises and offers the following additional explanation in response. Disaster contingency planning and training exercises have been conducted by a variety of federal agencies for many years with no significant environmental impact. The Office of Domestic Preparedness (ODP), formerly in the Department of Justice and now merged into DHS, has conducted terrorist attack response exercises since 1997. The Federal Emergency Management Agency (FEMA), which was merged into DHS Emergency Preparedness and Response Directorate, has also conducted these types of training exercises for many years to train for response to natural disasters. No evidence of significant environmental impact has been demonstrated from the conduct of these exercises by ODP or FEMA. DHS provides direct support, technical assistance, and funding to plan, conduct, and evaluate training exercises based on natural disasters, accidents, and chemical, biological, radiological, nuclear, or explosive terrorism. Exercises take place in communities around the nation and involve members from several response disciplines. Realistic training scenarios that involve local, state, and federal agencies are necessary to simulate actual conditions and hone the skills first responders will need in the event of a disaster, whether from terrorist attack or other natural or manmade causes. Full-scale exercises (FSEs) are the largest and most complex of these training activities and are purposefully planned with the participation of the other relevant governments and response organizations to provide as realistic a scenario as possible without making unacceptable demands on available emergency response resources or unacceptable impacts on the communities or the environments where they occur. In particular, FSE activities contemplated in the development of this CATEX are normally conducted in venues such as sports stadia, fairgrounds, ports, or other sites where large-scale activities normally take place. Pursuant to the language of the proposed CATEX, training exercises are required to be conducted “* * * in accordance with existing facility or land use designations.” This means that the entire exercise, including airborne emissions, waterborne effluents, outdoor noise, and solid and bulk waste disposal practices, must comply with existing applicable federal, state and local laws and regulations. The CATEX on its face does not apply to “* * * exercises that involve the use of chemical, biological, radiological, nuclear, or explosive agents/devices * * *” that potentially could have an adverse environmental impact. Categorical Exclusion H2. The former CATEX published as H2 for “Issuance of grants for the conduct of security-related research and development or the implementation of security plans or other measures at existing facilities” has been deleted, since it was found to be redundant with the laboratory operations in B1 and the physical security activities in B9. The former CATEX H3 for “Issuance of planning documents and advisory circulars on planning for security measures which are not intended for direct implementation or are issued as administrative and technical guidance” was found to include activities that were redundant with the activities described in CATEX A3. Categorical Exclusion I1. The commenter suggested edits to ensure that the use of a portable or relocatable facility does not impact sensitive resources that may be near the facility. DHS accepted this comment and made the recommended changes, as well as other grammatical changes. Categorical Exclusions J2 and J3 (published in the draft Directive as categorical exclusions B13 and B14, respectively). Comments stated that Categorical Exclusion B13 created an incentive for logging by allowing commercial thinning of forests. Comments expressed concern that there were no stated requirements for agencies to cite a purpose for their logging activities such as to remove trees threatening essential DHS facilities or blocking construction of the same. Comments expressed concern that Categorical Exclusion B13 opened up the ability of an agency to allow multiple, 70-acre areas to be cumulatively cut in environmentally sensitive habitat. Comments requested explanation of how many projects will be covered under Categorical Exclusion B13, how many acres will be affected, how many board feet will be harvested, and what type of trees will be affected. Comments also expressed concern that Categorical Exclusion B13 may be used in a manner that would not consider impacts to cultural heritage areas. Comments stated that, while Categorical Exclusion B13 may be appropriate for certain agencies within DHS, such as the Federal Law Enforcement Training Center, it should not be a Department-wide categorical exclusion. Regarding Categorical Exclusion B14, comments expressed concern that it lacked requirements for agencies to provide a purpose for the salvage of dead or dying trees, such as a requirement to remove dead trees threatening essential DHS facilities or blocking construction of the same. The comments also expressed concern that Categorical Exclusion B14 would provide DHS with the opportunity to allow multiple, 250-acre areas to be cumulatively harvested in environmentally sensitive habitat. Comments also expressed concern over consideration of impacts to cultural heritage areas. Comments requested some explanation of how many projects will be covered under Categorical Exclusion B14, how many acres will be affected, how many board feet will be harvested, or what type of trees will be affected. DHS considered these comments and noted several similarities regarding the potential for environmental impact from the activities contemplated in these CATEXs. Upon review of the comments and the administrative record, DHS determined that Department-wide Categorical Exclusions for these activities were not necessary. Therefore, both of these CATEXs have been limited in application to the Federal Law Enforcement Training Center (FLETC). Activities conducted under these CATEX would be performed for operational, safety, or natural resources management purposes on FLETC property. Examples of the situations where these CATEXs may be used include, but would not be limited to, situations where trees that are damaged by storms or disease or may be dead or dying would threaten the operation of FLETC facilities, situations where forest management is needed to encourage the return of native forest species or to promote forest health, or where control of fuel load is needed to protect residential or commercial property immediately adjacent to FLETC property. In all cases, FLETC property managers would be expected to employ forest management practices as defined by the Society of American Foresters. In addition, a commercial timber harvest program would not conform to the mission of DHS and DHS does not manage sufficient land area to sustain such a program. Consequently, there are no existing programs in DHS to encourage any type of commercial forest use nor are any expected to be established. Categorical Exclusion K1. The commenters expressed concerns about the use of this CATEX in sensitive habitats. They stated that limited monitoring conducted by wildlife and land management agencies suggests that there are systematic and on-going environmental abuses and degradation caused by the Border Patrol during road dragging activities. Specifically, these one-lane roads, according to the commenters, quickly become two and three lanes in addition to the off-road driving on the shoulder done to read foot prints in the sand. The commenters stated that much of the dragging takes place in important habitat for several endangered species. In addition, the commenter asserted that since “trails” are by definition limited to foot traffic, road dragging should not be permitted on trails. DHS considered these comments regarding the potential for environmental impact from the activities contemplated in this CATEX. In response to this comment, Customs and Border Protection believes that it will provide adequate protection for the environment by limiting this CATEX to road dragging that will not expand the width, length, or footprint of the road or trail. Drag roads are roads and soft shoulders that are purposefully made to be wide and are groomed daily for evidence of the foot traffic from illegal entrants or smugglers. Many of these roads have been actively maintained in this fashion since the predecessor to the current Office of the Border Patrol was established in 1936. This CATEX covers previously groomed and maintained roads and trails and does not cover the creation of new drag roads; minor edits have clarified that the purpose is for maintaining rather than creating roads and trails. New drag roads would go through the same environmental review that any new road development would require. Care is taken by the Border Patrol agents to minimize impact to wildlife assets in the normal course of their duties to defend the border areas of the Nation. Michael Chertoff, Secretary of Homeland Security. Management Directive 5100.1, Environmental Planning Program 1. Purpose A. This Directive establishes policy and procedures to ensure the integration of environmental considerations into Department of Homeland Security (DHS or the Department) mission planning and project decision making. Environmental stewardship, homeland security, and economic prosperity are compatible and complementary. This Directive establishes a framework for the balanced and systematic consideration of these factors in the planning and execution of DHS activities. B. This Directive establishes procedures that DHS will use to comply with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4335) and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508). NEPA is the basic charter and foundation for stewardship of environmental resources in the United States. It establishes policy, sets goals, and provides a tool for carrying out federal environmental policy. NEPA requires federal agencies to use all practicable means within their authority and consistent with other essential considerations of national policy, to create and maintain conditions under which people and nature can exist in productive harmony and fulfill the social, economic, and other needs of present and future generations of Americans. C. This Directive provides the means for DHS to follow the letter and spirit of NEPA and comply fully with CEQ regulations. This Directive adopts and supplements CEQ regulations, and is to be used in conjunction with them. This Directive encompasses other requirements and establishes the DHS Environmental Planning Program. 2. Scope A. Substantive or procedural requirements in this Directive apply to DHS components as described herein and are to be used in program planning and project development. This Directive applies to any discretionary DHS action with the potential to affect the quality of the environment of the United States, its territories, or its possessions. It also addresses those DHS actions having effects outside the United States, its territories, or its possessions under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions. More specifically, this Directive applies to: 1. DHS mission and operations planning 2. Promulgation of regulations 3. Acquisitions and procurements 4. Asset management 5. Research and development 6. Grants programs B. This Directive supplements CEQ regulation for implementing NEPA. In the case of any apparent discrepancies between these procedures and the mandatory provisions of CEQ regulations, CEQ regulations will govern. 3. Authorities This Directive is governed by numerous Public Laws, Regulations, and Executive Orders, including, but not limited to: A. Clean Air Act (16 U.S.C. 470 et seq. ) B. Coastal Zone Management Act (16 U.S.C. 1451 et seq. ) C. Endangered Species Act (16 U.S.C. 1531 et seq. ) D. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4321-4335) E. Federal Water Pollution Control Act (33 U.S.C. 1251 et seq. ) F. Marine Mammal Protection Act (16 U.S.C. 1361 et seq. ) G. Migratory Bird Treaty Act (16 U.S.C. 703-712) H. National Environmental Policy Act (42 U.S.C. 4321 et seq. ) I. National Historic Preservation Act (16 U.S.C. 470 et seq. ) J. National Marine Sanctuaries Act (16 U.S.C. 1431 et seq. ) K. Title 40 of the Code of Federal Regulations Parts 1500-1508 L. Executive Order 11514, Protection and Enhancement of Environmental Quality, dated March 5, 1970, as amended by Executive Order 11991, dated May 24, 1977. M. Executive Order 11988, Floodplain Management, dated May 24, 1977. N. Executive Order 11990, Protection of Wetlands, dated May 24, 1977. O. Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, dated January 4, 1979. P. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, dated February 11, 1994. Q. Executive Order 13101, Greening the Government through Waste Prevention, Recycling, and Federal Acquisition, dated September 14, 1998. R. Executive Order 13123, Greening the Government through Efficient Energy Management, dated June 3, 1999. S. Executive Order 13148, Greening the Government through Leadership in Environmental Management, dated April 21, 2000. T. Executive Order 13149, Greening the Government through Federal Fleet and Transportation Efficiency, dated April 21, 2000. 4. Definitions A. All definitions of words and phrases in 40 CFR Part 1508 apply to this Directive. B. A glossary of words and phrases as used in this Directive is included in Appendix A. 5. Responsibilities Responsibility for oversight of DHS NEPA activities, unless otherwise delegated, is as follows: A. The Secretary of DHS (Secretary) recognizes the long term value of incorporating environmental stewardship into the planning and development of all DHS missions and activities and exercises the ultimate responsibility in the Department to fulfill environmental planning requirements. To this end, the Secretary delegates specific authority for environmental planning to the heads of the Directorates, service chiefs, and other direct reports. The Secretary delegates to the Under Secretary for Management, as the Departmental Environmental Executive, the authority to establish an Environmental Planning Program and to ensure that environmental planning requirements are functionally integrated into DHS missions. The following objectives are to be used in guiding environmental planning activities in DHS: 1. Timely and effective support 2. Sustainable capability 3. Consistency with national security, fiscal responsibility, and other considerations of national policy 4. Full compliance with all appropriate environmental laws, Executive Orders, regulations, and other requirements, such as environmental management systems (EMS). B. The DHS Department Environmental Executive (DEE) is the Under Secretary for Management and has authority to fulfill the Secretary's objectives by ensuring that the Department fully integrates environmental planning requirements into all DHS missions and activities. The DEE recognizes that environmental planning is an important and necessary part of good management practice in the Department. To this end, the DEE has delegated specific authority for environmental planning to the Chief of Administrative Services, the Director of the Office of Safety and Environmental Programs, and to other DHS officials as set forth in this Directive. In exercising the authority delegated from the Secretary, the DEE will: 1. Ensure that Under Secretaries and Designated DHS Officials incorporate environmental planning and stewardship requirements into their mission requirements to fulfill the Secretary's objectives, the requirements of NEPA, CEQ Regulations, this Directive, applicable Executive Orders, and other environmental planning requirements. 2. Support budget requests to meet the requirements of this Directive. 3. Consult, as needed, with Under Secretaries and Designated DHS Officials to ensure that they complete appropriate environmental planning for highly sensitive programs or actions that may require the attention of either the Deputy Secretary or the Secretary. 4. Delegate requests for environmental planning-related information received at the Departmental level to the Chief, Administrative Services for action. C. The Chief of Administrative Services (CAS) has authority to support the DEE in efforts to promote good management practice by ensuring that environmental planning requirements are functionally integrated into all of DHS missions and activities. To this end, the CAS has delegated authority to establish a reliable and cost effective environmental planning program to the Director, Office of Safety and Environmental Programs. In exercising this authority, the CAS will: 1. Advise the DEE, as needed, on all environmental planning matters in the Department. 2. Establish, as needed, appropriate Department-wide policy, guidance, or training to enable the effective performance of environmental planning throughout DHS. 3. Recommend, as requested by the DEE, appropriate action on budget requests for environmental planning resources from Under Secretaries and Designated DHS Officials. 4. Consult with Under Secretaries and Designated DHS Officials to ensure that their policies and procedures incorporate the requirements of this Directive. 5. Direct, as needed, the performance of environmental planning activities within DHS components with particular emphasis on highly sensitive programs or actions that may require the attention of the senior executive levels of the Department. 6. Coordinate requests for environmental planning related information received at the Departmental level among appropriate DHS components or assign the request to the appropriate components for resolution. 7. Approve new or revised administrative procedures proposed by DHS components, including the delegation of authority to sign environmental documents pursuant to the recommendations of the Director, Office of Safety and Environmental Programs. Coast Guard, Federal Emergency Management Agency, and Customs and Border Protection, are delegated this authority when this directive goes into effect. 8. Revoke, as appropriate, delegations of authority to a DHS Under Secretary or Designated Official. D. The Director, Office of Safety and Environmental Programs (DOSEP) is designated by the Secretary as DHS Environmental Planning Program Manager and is responsible for establishing and directing the Department's environmental planning program, and ensuring its functional integration into DHS missions. The DOSEP will support the CAS with advice and assistance in carrying out the responsibilities of that office as set forth in the above paragraph. Such advice and assistance will: 1. Advise the CAS, as needed, on all environmental planning matters in the Department. 2. Develop, as needed, policy, guidance, or training to enable the reliable, timely, and cost effective performance of environmental planning throughout the Department to fulfill the Secretary's objectives and other requirements of this Directive. 3. Evaluate for CAS, as requested, budget requests for environmental planning resources. 4. Direct, as needed, the performance of environmental planning activities within DHS components, with particular emphasis on headquarters level programs or actions and those that have the interest of the CAS. 5. Coordinate and respond to requests for environmental planning related information received at the Departmental level among appropriate DHS components or assign the request to the appropriate Directorate for resolution. 6. Review environmental documents, public notices, and other related external communications that require a Departmental-level approval prior to release by the Proponent. This includes all draft, final, and supplemental Environmental Impact Statements (EIS) originating in the Department prior to filing with EPA, unless otherwise delegated. 7. Evaluate new or substantively revised supplemental procedures from DHS components for conformance with this Directive. DHS components' supplemental procedures will only be recommended to CAS for approval after they are evaluated by DOSEP, meet all necessary CEQ and public review requirements, and incorporate all appropriate comments and revisions. 8. Evaluate new or revised DHS component procedures for environmental planning requirements promulgated under laws other than NEPA to ensure appropriate consistency with existing policies or procedures and potential for department-wide applicability. 9. Evaluate requests for delegation of authority from an Under Secretary or a designated DHS Official to sign environmental documents. Such delegation shall only be recommended for approval if the requestor has both approved supplementary procedures and adequate staff resources to fulfill the Secretary's objectives and the requirements of this Directive. The adequacy of staff resources will involve an evaluation of knowledge and experience in fulfilling environmental planning requirements and preparing NEPA analyses and documentation sufficient to meet the Secretary's objectives. Requests for delegation of authority and supplementary procedures may be evaluated concurrently. 10. Recommend revocation of a delegation of authority from an Under Secretary or a designated DHS Official for inappropriate procedures or inadequate staff resources to ensure full compliance with this Directive or other environmental planning requirements. 11. Assist DHS components, as needed, in reviewing and assessing the environmental impacts of proposed DHS actions covered by Executive Order (E.O.) 12114. 12. Review and comment on EISs and NEPA analyses originating from agencies outside of DHS relating to: (a) Actions with national policy implications relating to DHS missions; (b) Legislation, regulations, and program proposals having a potential national impact on a DHS mission, and, (c) Actions with the potential to encroach upon DHS missions. 13. Coordinate requests from non-Departmental agencies regarding cooperating agency status within DHS, as appropriate. 14. Act as the principal point of contact for DHS on environmental issues brought before CEQ, the Office of Management and Budget, the Advisory Council on Historic Preservation, U.S. Environmental Protection Agency headquarters, and other federal agency headquarters. This includes requests for alternative arrangements to comply with NEPA and CEQ regulations. 15. Perform other functions as are specified in this Directive or as are appropriate under NEPA, CEQ regulations, applicable Executive Orders, other requirements concerning environmental matters. E. The Office of General Counsel will: 1. Provide legal sufficiency review, when appropriate, for use of categorical exclusions, draft, final, and supplemental Environmental Assessments (EAs), Findings of No Significant Impact (FONSIs), Environmental Impact Statements (EISs), and Records of Decision (RODs). 2. Advise Proponents (as defined in Appendix A, Glossary) in consultation with the Environmental Planning Program Manager (EPPM), whether a component's proposed action is subject to the procedural requirements of NEPA. 3. Advise Proponents on compliance with NEPA, CEQ Regulations, applicable Executive Orders, and other environmental planning requirements. 4. Assist in establishing or revising Departmental or component's NEPA procedures, including appropriate categorical exclusions (CATEX). F. All Under Secretaries, Designated DHS Officials, and Heads of Components will: 1. Fully integrate the requirements of this Directive into planning for all applicable programs, activities, and operations. Ensure that the planning, development, and execution of all their missions and activities conform to the policy and procedures in this Directive. 2. Ensure that DHS Proponents take the lead in environmental planning efforts and maintain an understanding of the potential environmental impacts of their programs and projects. 3. Plan, program, and budget for the requirements of this Directive. 4. Support outreach processes for environmental planning. 5. Coordinate with other DHS components on environmental issues that affect them. 6. Prepare and circulate environmental documents for the consideration of others when an action or policy area in question falls under their jurisdiction as required by 40 CFR Part 1506.9. 7. Request the assistance of DOSEP in preparing the environmental analysis for any actions covered by E.O. 12114, unless otherwise delegated. 8. Propose to the CAS, for review and approval, new or revised supplemental procedures for the implementation of this Directive. All supplemental procedures will be consistent with the National Environmental Policy Act, this Directive and the CEQ regulations. (a) Proposals to establish, substantively revise, or delete CATEXs are subject to DOSEP review, CEQ review, public comment, and publication of a final version in the Federal Register before they can be used. (b) For those Under Secretaries and Designated DHS Officials with delegated authority to sign environmental documents, preparation of handbooks and other technical guidance regarding NEPA implementation do not need CAS and CEQ approval. 9. Propose to the CAS any new or revised procedures for environmental planning requirements promulgated pursuant to laws other than NEPA to confirm appropriate consistency with existing department-wide policies or procedures and to evaluate potential applicability to other DHS components. Any new or revised procedures must be consistent with existing department-wide policies or procedures. 10. Send all environmental documents and procedures via their respective organizational hierarchy to the DOSEP for review, prior to release to the public, unless otherwise delegated. 11. Components not listed in paragraph 5.C.7 may request from the CAS a delegation of authority to sign environmental documents. The request should include documentation demonstrating that the component has adequate staff resources with knowledge and experience in preparing NEPA analyses and documentation sufficient to ensure full compliance. 12. Ensure that all external communications on environmental planning requirements that are controversial, highly visible, classified, sensitive or related to matters with potential for Department-wide implications are coordinated with the DOSEP and provide DOSEP with a copy of all related formal communications. 13. Respond to requests for copies of environmental documents, reports or other information related to the implementation of NEPA. 14. Designate an appropriate Environmental Planning Program Manager (EPPM) and alternate in their respective components as a single point of contact for coordination with DOSEP on relevant environmental planning matters. G. Environmental Planning Program Managers (EPPMs) will: 1. Act as a single point of contact for DOSEP on all environmental planning matters. 2. Inform key officials within their respective components of current developments in environmental policy and programs. 3. Coordinate environmental planning strategies for matters within their respective component's purview. 4. Act to further their respective components compliance with the requirements of NEPA, CEQ regulations, this Directive, applicable Executive Orders, and other environmental requirements. 5. Identify discretionary activities within their respective components and ensure that the requirements of this Directive are fully integrated into those activities. 6. Work with Proponents in their respective components, as needed, to fulfill the requirements of this Directive and other environmental planning requirements. Consultation with Proponents will, at a minimum, involve the following objectives: (a) Ensure that appropriate environmental planning, including the analyses and documentation required by NEPA, is completed before the Proponent makes a decision that has adverse environmental effects or limits the choices of alternatives to satisfy an objective, fix a problem, or address a weakness. (b) Plan, program, and budget to meet the requirements of this Directive. (c) Support the execution of the requirements of this Directive. (d) Ensure that their respective DHS Proponents are cognizant of the potential environmental impacts of their programs and projects. (e) Monitor the preparation and review of environmental planning efforts to ensure compliance with all applicable scheduling, scoping, consultation, circulation, and public involvement requirements. (f) Advocate and develop, as appropriate, agreements with federal, tribal, and state regulatory and/or resource agencies concerning NEPA and other environmental planning requirements. (g) Coordinate with other DHS components on environmental issues that affect them. (h) Coordinate with DOSEP in preparing the environmental analysis for any actions covered by E.O. 12114. 7. Propose changes in this Directive or their supplementary procedures through the appropriate lines of authority to DOSEP. 8. Support outreach processes for environmental planning. 9. In consultation with the DOSEP, define appropriate environmental training requirements for personnel within their respective components. 10. Coordinate with DOSEP on environmental issues to be brought before CEQ, the Office of Management and Budget, the Advisory Council on Historic Preservation, U.S. Environmental Protection Agency headquarters, and other federal agency headquarters. 11. Coordinate requests from non-Departmental agencies regarding cooperating agency status with DOSEP. H. Program or Project Proponents will (in consultation with their respective EPPM): 1. Ensure that appropriate environmental planning, including the analyses and/or documentation required by NEPA is completed before a decision is made that limits the choices of alternatives to satisfy an objective, fix a problem, address a weakness, or develop a program. 2. Ensure that the program or project has adequate funding and resources to complete appropriate environmental analysis and documentation. 3. Ensure the quality of the analysis and the documentation produced in the environmental planning process. 4. Perform the appropriate outreach and communication with federal, state, tribal, local, and public interests. 5. Ensure that the project budget has sufficient resources to meet all mitigation commitments. 6. Seek technical assistance from the DOSEP, as needed, through the appropriate lines of authority to ensure compliance with NEPA. 6. Policy A. Stewardship of the air, land, water, and cultural resources is compatible with and complementary to the planning and execution of the DHS mission. Environmental planning processes provide a systematic means of evaluating and fulfilling this aspect of DHS responsibility. DHS recognizes that when environmental stewardship responsibilities are not managed effectively, there may be social, financial, and administrative costs, as well as lost opportunities and potential for lower quality mission outcomes. To effectively meet its environmental stewardship responsibilities, DHS will integrate environmental planning requirements into homeland security operational planning, program development, and management methodologies consistent with homeland security requirements, fiscal policies, and other considerations of national policy. B. DHS Proponents will have the lead role in the environmental planning process. DHS Proponents will be cognizant of the impacts of their decisions on cultural resources, soils, forests, rangelands, water and air quality, fish, and wildlife, and other natural resources in the context of terrestrial and aquatic ecosystems. DHS Proponents will employ all practical means consistent with other considerations of national policy to minimize or avoid adverse environmental consequences and attain the goals and objectives stated in NEPA. C. DHS Proponents will provide for adequate staff, funding, and time to integrate environmental planning into DHS missions and to perform appropriate NEPA analysis (in conformance with 40 CFR 1507.2) for programs, plans, policies, projects, regulations, orders, legislation or applications for permits, grants, or licenses. Should mitigation be necessary to reduce the environmental effects of a DHS proposed action, the Proponent will be responsible for providing the costs of mitigation or ensuring that the applicant provides for mitigation. D. DHS Proponents will integrate the NEPA process with other DHS planning and project decision making activities and other environmental review requirements sufficiently early to: 1. Ensure that mission planning, program development, and project decision making reflect the Secretary's objectives and the policies in this Directive. 2. Ensure that no action moves forward for funding or approval without the systematic and interdisciplinary examination of likely environmental consequences according to the policy and procedures in this Directive. 3. Balance environmental concerns with mission requirements, technical requirements, and costs in the decision making processes to ensure long-term sustainability of DHS operations. 4. Allow for appropriate communication, cooperation, and collaboration between DHS, other government entities, the public, and non-governmental entities as an integral part of the NEPA process. E. DHS Proponents will emphasize quality analysis of the potential for environmental effects among alternative courses of action to meet mission needs and the development of strategies to minimize those effects. Documentation required under NEPA will present the evaluation of environmental effects and the development of the minimization strategies. The depth of analysis and volume of documentation will be proportionate to the nature and scope of the action, and to the complexity and level of anticipated effects on important environmental resources. Documentation is necessary to present results of the analysis, but the objective is quality analysis to support DHS decisions, not the production of documents. F. DHS Proponent, in consultation with the EPPM and the Office of General Counsel, will determine the level of NEPA analysis required for the proposed action. DHS Proponents will complete their NEPA analysis and review for each DHS proposed action before making a final decision on whether to proceed with the proposed action. No action or portion of an action that is the subject of an EA or EIS process will be taken that limits reasonable alternatives, involves a conflict of resource use, or has an adverse environmental effect until the ROD or FONSI has been made public. No actions or portions of an action covered by a CATEX that requires a Record of Environmental Consideration (REC) will be taken until the REC is completed. G. Laws other than NEPA that require DHS to obtain or confirm the approval of other federal, tribal, state, or local government agencies before taking actions that are subject to NEPA, will be integrated into the NEPA process at the earliest possible stage and to the fullest extent possible. However, compliance with other environmental laws does not relieve the Proponent from completing an environmental planning process, including appropriate compliance with NEPA. In addition, compliance with NEPA does not relieve the Proponent from complying with other environmental requirements. 7. Procedures A. Appendix A contains specific procedures for the application of environmental planning requirements to DHS consistent with the Secretary's objectives and the policies in this Directive. Appendix A also provides a glossary. B. A DHS component with delegation of authority under Section 5.C.7 may also propose supplemental procedures for CAS approval. Supplemental procedures specific to a DHS component will be effective upon approval by CAS. C. All supplemental procedures must be fully consistent with this Directive. D. DHS components may not use the CATEX expressly limited to another DHS component or CATEX from any other federal agency. E. The CAS may revoke all or part of a component's delegation and any supplemental procedures. No component will be given approval to implement its own supplemental procedures, unless they also have received complete delegation authority. F. Components may prepare handbooks or other technical guidance for their personnel on how to apply these procedures to their programs. G. Any questions or concerns regarding this Directive should be addressed to the Director, Office of Safety and Environment. Appendix A, Timely and Effective Environmental Planning in the Department of Homeland Security Introduction This Appendix provides guidance for timely and effective environmental planning and includes supplementary instructions for implementing the NEPA process in DHS. The numbers in parentheses signify the relevant citation in CEQ Regulations. DHS and its components will use NEPA as a strategic planning tool, not as a documentation exercise. DHS is committed to using all of the tools at its disposal to ensure timely and effective environmental planning and implementation of the NEPA process. 1.0 General Policies and Provisions Timely and effective environmental planning involves a systematic process to identify and evaluate the potential for significant environmental effects from a proposed DHS action. Proponents of programs and activities within DHS have a major role in this process and are responsible for implementing the policies and provisions set out in this section. This process and the guidance in this Directive are designed to focus effort on those types of actions with the most potential for significant environmental effects. The process involves three levels of evaluation effort as shown in Figure 1: Categorical exclusion, environmental assessment, and environmental impact statement. These levels reflect the increasing potential for significant environmental effects. It is expected that the majority of proposed DHS actions will be able to be evaluated through CATEX or environmental assessments. Fewer DHS actions are likely to require an EIS, which is prepared for those proposals with the potential to significantly impact natural resources and the human environment. 1.1 Up-Front Planning Activities A. Continually assess environmental planning in DHS to improve its effectiveness in supporting and enabling departmental missions. B. Adapt environmental planning goals and requirements to complement DHS mission requirements. C. Fully integrate NEPA and other environmental planning goals and requirements into program planning and decision-making processes and formal direction, as appropriate, at all levels of the DHS organization. D. Ensure that environmental planning staffs are located within the DHS organization where they can function as effective members of interdisciplinary planning and project teams. E. Enable effective environmental planning through appropriate training, education, and interagency support relationships. BILLING CODE 4410-10-P EN04AP06.000 BILLING CODE 4410-10-C 1.2 Ongoing Administration A. Ensure that appropriate environmental planning, including the analyses and documentation required by NEPA, is completed before the Proponent makes a decision that limits the choice of alternatives to satisfy an objective, fix a problem, or address a weakness. B. Integrate environmental and planning reviews concurrently, rather than sequentially, with the NEPA process. C. Use public involvement processes to limit the analysis of issues to those that are important to the decision making at hand. D. Share information with and coordinate with other federal, tribal, state, and local agencies early in the planning process and integrate planning responsibilities with other agencies and governments. E. Take into account the views of the surrounding community and other interested members of the public during its planning and decision making process. F. Offer cooperating agency status, where appropriate, to other federal, tribal, state, and local agencies that have jurisdiction by law or special expertise, which means statutory responsibility, agency mission or related program experience, with respect to environmental issues. G. Ensure the scientific integrity of all environmental impact analyses, mitigation requirements, and monitoring requirements. H. Make maximum use of programmatic analyses and tiering of environmental planning efforts to provide relevant environmental information at the appropriate program and project decision levels, eliminate repetitive analyses and discussion, ensure proper consideration of cumulative effects, and focus on issues that are important to the decision being made. I. In accordance with 40 CFR 1506.3, consider adopting relevant existing environmental impact analyses, or any pertinent parts thereof, whether prepared by DHS or another agency. Adopted environmental impact analyses of others may be revised or supplemented as needed to serve DHS purposes. J. Incorporate material by reference to reduce unnecessary paperwork without impeding public review. The referenced material must be reasonably available for public review within the time allowed for comment. K. Update the list of CATEX to ensure that DHS environmental planning resources remain focused on those activities with the most potential for significant effects. 1.3 Follow Through—Monitoring and Mitigation (40 CFR 1505.3) A. Practical mitigation measures (i.e., those that can be reasonably accomplished within the scope of a proposed alternative, to include offsite mitigation) should be identified to address the impacts of the proposed action and alternatives. Any mitigation measures selected by the Proponent will be clearly outlined in the FONSI or ROD and will be included in the proposed budget for the project or made a part of the approved application from external entities. B. Use best management practices and existing environmental management systems, to implement a project and monitor the predicted environmental effects. Using adaptive management techniques, adapt the implementation of a project as new information becomes available. C. Budget for mitigation. The Proponent will ensure funding to implement mitigation commitments or ensure that external applicants provide for mitigation funding in their proposal prior to approval by DHS. D. Implement mitigation. Ensure that all mitigation commitments in the ROD or FONSI are implemented. E. Monitor Results. Monitoring of the expected environmental effects from DHS projects, including appropriate indicators of effectiveness, is an integral part of any mitigation system. The Proponent is responsible for ensuring monitoring during mitigation, where necessary, to ensure that the final decision justified in the ROD or FONSI is implemented. For external applicants, the Proponent is responsible for ensuring that the applicant provides for monitoring. The Proponent is responsible for responding to inquiries from the public or other agencies regarding the status of mitigation measures adopted in the NEPA process. 1.4 Dispute Resolution A. The DHS Dispute Resolution Process. During the environmental planning process, a DHS Proponent and another federal agency may not agree on significant issues or aspects of the process. DHS policy is to seek to resolve these disputes at the lowest organizational level possible. However, there are occasions when disputes cannot be resolved at this level. Figure 2 provides a diagram of the full dispute resolution process within DHS. Alternative Dispute Resolution, using the Institute for Environmental Conflict Resolution (a federal agency based in Tucson, Arizona) or another mediation service, is an option that may be used at any stage of this dispute resolution process for more significant disputes. When significant disputes arise, it is important to maintain a record of the positions and interests of all of the disputing parties, as well as the eventual resolution of the dispute. The Proponent will provide the other federal agency with written notification, using certified mail or a comparable method, detailing the nature of the disagreement. The Proponent will attempt to resolve the dispute within 30 working days of notification. If dispute negotiations fail, the Proponent must notify the other federal agency in writing that an agreement is unlikely and provide a copy to the headquarters of the respective DHS component (where the component does not have a separate headquarters, then the notification must go to the Proponent's program office within their respective Assistant Secretary's staff). From the date of that letter, the headquarters of the DHS component will initiate 30 additional working days of negotiations. If after 30 working days, the headquarters of the DHS component has not resolved the issue, it will be forwarded to the DEE. The DEE may appoint a negotiating team and/or seek Council on Environmental Quality (CEQ) support in resolving the issue. B. The CEQ Referral Process (40 CFR Part 1504). The CEQ referral process is available when an agency is of the opinion that there are unacceptable environmental effects associated with another agency's proposed actions. Upon receipt of information that another federal agency intends to refer a DHS matter to CEQ, the DHS lead component will immediately notify and consult with the DOSEP to notify the DEE and determine how to proceed. In those instances where a DHS component is of the opinion that another agency's proposed action that is being analyzed in an EIS will result in unacceptable environmental effects, the component should elevate the matter to the DOSEP and DEE at the ear [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-3078. Public record. Not legal advice.