National Environmental Policy Act Revised Implementing Procedures

DEPARTMENT OF THE INTERIOR

National Environmental Policy Act Revised Implementing Procedures

AGENCY: Department of the Interior.

ACTION: Notice of Final Revised Procedures for the Fish and Wildlife

Service (Service).

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SUMMARY: This notice announces final revised procedures for

implementing the National Environmental Policy Act (NEPA) for actions

implemented by the Fish and Wildlife Service in Appendix 1 in the

Department of the Interior's (Departmental) Manual (516 DM 6). The

revisions update the agency's procedures, originally published in 1984,

based on changing trends, laws, and consideration of public comments.

Most importantly, the revisions reflect new initiatives and

Congressional mandates for the Service, particularly involving new

authorities for land acquisition activities, expansion of grant

programs and other private land activities, and increased Endangered

Species Act (ESA) permit and recovery activities. The revisions promote

cooperating agency arrangements with other Federal agencies; early

coordination techniques for streamlining the NEPA process with other

Federal agencies, Tribes, the States, and the private sector; and

integrating the NEPA process with other environmental laws and

executive orders.

EFFECTIVE DATE: January 16, 1997.

FOR FURTHER INFORMATION CONTACT: Don Peterson, Environmental

Coordinator, Fish and Wildlife Service, at (703) 358-2183.

SUPPLEMENTARY INFORMATION: The Service's existing procedures for

implementing NEPA with regard to actions proposed to be carried out by

the Service appear in Appendix 1 to Chapter 6, Part 516, of the

Departmental Manual (516 DM 6, Appendix 1). These procedures are

consistent with the Council on Environmental Quality's (CEQ)

Regulations for Implementing the Procedural Provisions of NEPA

(Regulations). These procedures (Appendix 1) were previously published

in the Federal Register on July 1, 1982 (47 FR 28841), and were

incorporated into the Departmental Manual on April 30, 1984. Proposed

revised procedures were published in the Federal Register on May 1,

1996 (61 FR 19308), for 45-day public review. The comment period closed

June 17, 1996.

The final revisions update organizational changes in the Service

(section 1.1); provide general guidance for NEPA compliance for Service

activities (section 1.2); update guidance to State, local, and private

applicants for permits and Federal assistance provided through Service-

administered programs (section 1.3); update and expand the categorical

exclusions to reflect increased responsibilities, including the

implementation of several new programs (section 1.4); add a new section

that identifies Service actions normally requiring an environmental

assessment (EA) (section 1.5); and revise the list of major actions

normally requiring the development of an environmental impact statement

(EIS) (section 1.6). The Appendix must be read in conjunction with the

Department's NEPA procedures (516 DM 1-6) and CEQ's Regulations (40 CFR

1500-1508). The Department's overall NEPA procedures were published in

the Federal Register on April 23, 1980 (45 FR 27541), and were revised

in 49 FR 21437, on May 21, 1984.

RESPONSE TO COMMENTS: A total of eight responses were received during

the public comment period. As a result of

[[Page 2376]]

these comments and other internal Service input, several technical

changes were made to refine the final revised procedures. The following

is the Service's response to substantive comments.

Streamlining, Increased Inter-Agency Cooperation, and Early

Coordination To Resolve Issues and To Integrate NEPA are Supported

Many commenters supported the changes, particularly those efforts

to integrate Service programs, such as integrating the section

10(a)(1)(B) incidental take process, with NEPA. We are also encouraged

by widespread support for increasing Service involvement in cooperative

efforts with other agencies and for promoting early coordination with

Federal agencies and Tribal, State, and local governments. Additional

language was added to section 1.2 to further encourage cooperative and

early coordination efforts.

There Should be Consistency Between the Service and the National

Marine Fisheries Service in Developing NEPA Procedures for

Implementing The Endangered Species Act

One commenter stated that there should be consistency between the

Service and the National Marine Fisheries Service (NMFS) in developing

NEPA procedures for implementing the provisions of ESA. The Service and

NMFS share in the responsibility of implementing many of the provisions

of ESA. In that regard, the Service and NMFS are working together, to

the extent practicable, given different agency missions and objectives,

to seek consistency in applying NEPA to ESA activities.

An EA Must Be Prepared Prior to Finalizing the Revisions

One commenter stated that the Service must prepare an EA prior to

finalizing these procedural changes. The final NEPA procedures are

considered categorically excluded under an existing Departmental

categorical exclusion (516 DM 2, Appendix 1.10), which applies to

procedures where the environmental effects are too broad, speculative,

or conjectural to lend themselves to meaningful analysis. Individual

Service actions are subject later to the NEPA process, pursuant to

these procedures, either collectively or on a case-by-case basis.

Regional Directors Should Be Responsible for Contacting State,

Tribal, and Local Governments When Initiating an Action

One commenter stated that language should be added to section 1.1E

to require each Regional Director to be responsible for contacting

State, Tribal, and local governments when initiating an action.

Numerous Service guidance documents (e.g., 30 AM 3) already require the

Service to coordinate with the effected public when the Service

proposes actions requiring an EA or EIS. However, to strengthen this

important requirement of the CEQ Regulations, additional language has

been added to section 1.1E.

Executive Order 12996 on ``Management and General Public use of the

National Wildlife Refuge System'' Should be Referenced in the

Procedures

One commenter stated that the recently published Executive Order

12996, signed March 25, 1996, entitled ``Management and General Public

Use of the National Wildlife Refuge System'' should be cited in this

section. We concur and have added appropriate language to section

1.3A(2).

The NEPA Procedures are Confusing as to Whether they Apply to

Service Actions or to the Service Review of Other Agency Activities

One commenter stated that the Service's revised NEPA procedures,

particularly section 1.3B, are confusing as to whether they apply to

Service actions or to the review of other Federal agency activities. We

agree that the revised procedures are not clear on this point. These

procedures apply to Service actions only, including, but not limited

to, proposed construction, changes in land or human use, issuance of

grants, issuance of permits, etc. Section 1.3 provides guidance to

permittees who receive permits, grants, or technical assistance on how

to assist the Service meet its requirements under NEPA, other Federal

laws, and the executive orders. To clarify these procedures, minor

language changes have been made in sections 1.2 and 1.3, including the

deletion of section 1.3B, which primarily deals with the review of

other agency environmental documents.

Terminology to Define Categorical Exclusions is Vague and Undefined

and Could Result in Avoiding EAs and EISs

Several commenters suggested that the Service's use of terminology

such as ``no or minor change'', ``negligible environmental

disturbance'', and ``suitable habitat'', for example, for the

categorical exclusions (section 1.4), should be further defined.

Although the use of this terminology may at times seem vague, to define

limits such as the size of the structure, extent of acreage involved,

number of trees removed, etc., is generally not useful as a NEPA

trigger. Predetermined limits of physical factors often have little

relationship to the actual impact of the action. For example, a

proposal to acquire a 1,000-acre parcel from a willing seller as an

addition to a national wildlife refuge with little or no changes in

management may be categorically excluded because no change in the

environmental conditions is proposed or would occur; whereas, the

acquisition of a 1,000-acre in-holding which could terminate a popular,

locally-significant recreational use, would likely require the

preparation of an EA or EIS. Under the CEQ Regulations, it is the level

of impact or an established need to determine the level of impact that

triggers the preparation of an EA or EIS. In other words, Service

managers make NEPA decision based on the level of anticipated impact,

or uncertainty of the impact of the action, not merely on the physical

size of the action. Service decision makers are given a reasonable

amount of flexibility to make these decisions based on their

consideration of relevant biophysical factors that could result in

anticipated or possible impacts. General guidance is provided in the

Departmental NEPA procedures (516 DM 2, Appendix 2) to help Service

decisionmakers determine when exceptions to a normally categorically

excluded action could occur, thus requiring the preparation of an EA or

EIS. Service guidance is also provided in 30 AM 3.9. The Service will

continue to rely on this guidance and process to ensure proper

compliance with NEPA, consistent with CEQ's Regulations.

The Service is Categorically Excluding Actions That may Require the

Preparation of an EA or EIS

Several commenters were concerned that when impacts of actions,

normally categorically excluded, are substantial, the Service would not

prepare an EA or EIS (section 1.4). Commenters mentioned such actions

as the construction of new structures or improvements, section 10

permits, land acquisition, and fire management. An important factor for

determining when an action can fit an established categorically

exclusion is whether the action could have a significantly impact,

either individually or cumulatively. Departmental procedures (preamble

to section 1.4) clearly state that if there is an exception to the

categorically

[[Page 2377]]

exclusion, an EA or EIS must be prepared. The Departmental procedures

state that categorically exclusions are not the equivalent of statutory

exemptions. Exceptions to the categorical exclusions are found in the

Departmental Manual (516 DM 2, Appendix 2). In the past, environmental

documents have been prepared for the construction of new or improved

structures and for fire-related activities. These procedures continue

to require the preparation of an EA or EIS, when required. To ensure

coordination, compliance, and consistency with other affected Federal

agencies and State, Tribal, and local governments, language to this

affect has been inserted at the beginning of section 1.4B.

The Service has no Mechanisms to Assess the Cumulative Impacts of

its Actions

Several commenters stated that the Service has not mechanism to

assess cumulative impacts of categorically excluded actions (section

1.4), such as multiple minor modifications to existing land use as a

result of land acquisition, section 10(a)(1)(B) incidental take permits

under ESA, listings, designation of critical habitats, or recovery

plans and actions. For land acquisition actions, categorically excluded

activities must meet the three criteria set forth in section 1.4A(4).

In most cases, the land acquisition action covers the administrative

action of transferring title from an owner to the Service. Specific

guidance on land acquisition and the application of NEPA to land

acquisition actions is found Service guidance (341 FW 2). The land

acquisition planning process does not, nor is it intended to, fully

address the impacts of future management decisions for refuge. The

Service believes that aggregate land acquisition actions, per se, when

executed under the Service's current policies and guidelines, are not

causing significant impacts. The future development of refuge

comprehensive management plans and any step-down management plans,

however, are subject to NEPA compliance. The NEPA documents prepared

pursuant to these actions are to address all relevant impacts,

including cumulative impacts associated with the proposed management of

the lands and waters. Specific guidance regarding the development of

these plans and the application of NEPA to the development of

management plans is found in other Service guidance (602 FW 1-3).

One commenter stated that the number of habitat conservation plans

(HCP) prepared pursuant to section 10(a)(1)(B) of the ESA contradicts

the Service's assertion that the impacts of such activities would be

minor or negligible because of the total number of permits issued by

the Service. The commenter combined all HCPs into a single action that

was considered to be inevitably ``significant.'' It was also implied

that these permits are being issued without reference to any legal or

biological standards that mitigate their effects. None of these

assertions are true. Each permit application is evaluated to determine

the effect on individual species or groups of species and the habitat

on which they depend. Mitigation measures are then incorporated into

the HCP and permit, as appropriate, to ensure that there is not adverse

effect on the species. In some cases, the permit conditions may result

in enhancing the species or its habitat. The cumulative impacts from

categorically excluded low-effect HCPs are considered when the Service

performs internal section 7 (ESA) consultation on the proposed action,

pursuant to 50 CFR 402. Under section 7, the cumulative impacts

analysis includes the effects of future State, Tribal, local, or

private actions that are reasonably certain to occur in the action

area. Past activities that may affect the environmental baseline are

also considered. This process will be described in the final Section 7

Handbook and will be referenced in the final Section 10 Handbook, both

to be released in the near future. We believe this process is adequate

for ensuring the consideration of potential cumulative impacts of

multiple low-effect HCPs within the same geographic area.

Regarding listing actions, CEQ has determined that these actions

may be exempt from the requirements of NEPA, including an assessment of

cumulative impacts. This assessment is based, in part, on the ESA

amendments of 1982, which clearly restrict the information upon which

the Secretary of the Interior may make listing decisions. Only

scientific, biological criteria can be considered. The Service

published this finding in the Federal Register on October 1, 1984 (49

FR 38908).

Regarding the cumulative impacts of the designation of critical

habitat and the development of recovery plans, the Service believes

that these activities do not constitute a proposal under NEPA and,

therefore, do not warrant the preparation of an EA or EIS, including an

evaluation of cumulative impacts. Implementation of recovery actions,

however, is subject to NEPA, including the consideration of cumulative

impacts, as appropriate. Refer to other responses below.

The use of Categorical Exclusions Effectively Precludes Public

Involvement in Service Decisions

One commenter stated that categorical exclusions (section 1.4)

effectively preclude public involvement in Service decisions. The CEQ

Regulations clearly focus on those actions with significant impacts on

the quality of the human environment or on those actions whereby such a

determination must be determined (i.e., the EA), from which a better

environmental decision can be encouraged. Categorical exclusions are

categories of similar actions identified by agencies that normally do

not require the preparation of an EA or EIS because the actions do not

individually or cumulatively have a significant effect on the human

environment (40 CFR 1508.4). A major purpose of categorical exclusions

is to preclude such actions from undergoing detailed NEPA examinations

or public review. However, this does not preclude the Service from

involving the affected public in the planning and implementation of

such decision. In some cases, it is mandatory, such as for recovery

plan development. In other cases, the Service routinely includes the

affected public in decisions, such as land acquisition actions, and

issuance of special use permits, where the actions are normally

categorically excluded.

At a Minimum, an EA Should be Prepared for Land Acquisition Actions

One commenter stated that, at a minimum, the Service should prepare

an EA for all land acquisitions in cooperation with State, Tribal, and

local governments [section 1.4A(4)]. All land acquisition proposals for

the establishment or major expansion of national wildlife refuges are

completed with the Service's full consideration of NEPA during the

detailed pre-acquisition planning phase of a proposal. At that time,

the Service considers the environmental impacts of the acquisition of

lands within a proposed acquisition boundary. Proposals for the

establishment of refuges involve appropriate coordination with Federal

agencies and affected State, Tribal, and local governments. Either an

EA or EIS is normally prepared, depending on the significance of

impacts and/or controversy surrounding the proposal (refer to section

1.5A). The categorical exclusion for land acquisition in section

1.4A(4) is utilized for land acquisition within approved established

refuges or for minor adjustments to the acquisition boundary of an

existing refuge. Specific guidance on land acquisition and the

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application of the NEPA process is found in Service guidance (341 FW

2).

Concerns Were Raised Regarding the Categorical Exclusion for the

Reintroduction of Native, Formerly Native, or Established Species

Several commenters raised concerns regarding this categorical

exclusion [section 1.4B(6)]. These concerns are fueled, in part, by

controversy over the reintroductions of the gray wolf, proposed

reintroduction of the Mexican wolf, and debate over the reintroduction

of hatchery-raised fish. One commenter recommended that the categorical

exclusion be deleted.

The Service is involved in numerous reintroductions through various

grants programs (e.g., Federal Aid in Fish and Wildlife Restoration

Acts), recovery actions under ESA, and the Service's Fisheries Program.

The categorical exclusion for this activity applies only when there are

no significant impacts associated with the proposal. The categorical

exclusions must be read in context with the Departmental Manual, 516 DM

2, Appendix 2, which identifies exceptions to the categorical

exclusions. When an exception applies, such as an action with highly

controversial environmental effects, an EA or EIS must be prepared. In

a number of recent reintroductions, such as the reintroduction of the

gray wolf in Yellowstone National Park and central Idaho, and the

proposed reintroduction of the Mexican Wolf in Arizona and New Mexico,

an EIS was prepared due to the controversy over environmental effects

associated with the proposals.

Several commenters raised specific concerns about the use of this

categorical exclusion for the release of hatchery propagated fish. The

Service's National Fish Hatchery System produces various species of

fish for a variety of purposes. Numerous legislative authorities, such

as the Atlantic Striped Bass Conservation Act, Great Lakes Fishery Act,

New England Fishery Resources Restoration Act, Sikes Act, and the Water

Resources Development Act of 1976, to name a few, direct the Service's

Fisheries Program. While it is true that fishery managers in the past

sometimes favored using Federal hatcheries to produce and stock non-

native fishes, these kinds of activities are very limited today. The

Service's Fisheries Program focuses its resources on restoring depleted

native populations of fishes, recovering threatened and endangered

fishes, and maintaining the health and abundance of inter

jurisdictional fish populations. The service uses non-native fish

primarily in waterways grossly altered by water projects and in

artificial impoundments and sterile waterbodies. Any reintroduction

activity covered under this categorical exclusion, whether it involves

native or non-native species, will be subject to the exceptions

procedures in the Departmental Manual (516 DM 2, Appendix 2).

Additional language has been added to this categorical exclusion to

clarify that such reintroductions can be categorically excluded only

when no or negligible environmental disturbances are anticipated.

The categorical Exclusions are attempting to Bypass the Assessment

of Impacts for the Issuance of Permits

Several commenters suggest that the Service, through its

categorical exclusions [sections 1.4C(1) and (2)], is attempting to

bypass the assessment of impacts from the issuance of permits for

endangered and threatened species, species listed under the Convention

on International Trade on Endangered Species of Wild Fauna and Flora

(CITES), marine mammals, exotic birds, migratory birds, eagles, and

injurious wildlife.

Although some ESA permits can be issued which involve the killing,

removal from natural habitat, or permanent impairment of reproductive

capability of species under this revised categorical exclusion, the

permit can be issued only if it poses no jeopardy to the species. To

ensure this standard, permits include appropriate minimization and

mitigation actions in the conditions of the permit. If these actions

are not feasible or the conditions are not acceptable to the applicant,

the permit application will be denied.

Under the categorical exclusion 1.4C(1) and (2), section

10(a)(1)(B) incidental takes permits and the preparation of

accompanying HCPs can now be categorically excluded if the expected

impacts are minor or negligible. This standard for ``low-effect'' HCPs

was not included under the previous categorical exclusions, where any

permit, for example, involving incidental take, required the

preparation of an EA or EIS. The previous language was a far more

rigorous standard than required under NEPA. For example, under the

previous procedures, incidental take of a listed species would require

the preparation of an EA or EIS even when the service established that

there was only a minor or negligible effect. The revised language is

consistent with NEPA in that the level of impact is the trigger for

determining when to prepare an EA or EIS, thus allowing the

implementation of a more flexible, efficient section 10(a)(1)(B) permit

program. Additional Service guidance on how to determine when a permit

proposal will be ``low-effect'' will be included in the final Section

10 Handbook.

For species listed under CITES, the Wild Bird Conservation Act, and

the Marine Mammal Protection Act, the Service carefully reviews

possible effects of the proposed activity on the wildlife before

issuing a permit. For species listed as injurious wildlife, the Service

reviews whether provisions are in place to ensure that wildlife cannot

escape and potentially harm native wildlife. The permit review process

includes consulting with appropriate State and Federal agencies and

species experts. The Services makes a decision to issue a permit only

after issuance criteria are met. These are specific to the provisions

of the law or treaty. For example, under CITES, the Service's Office of

Scientific Authority must make a finding that the import or export

would not be detrimental to the survival of the species. If the Service

anticipates that a permit may have an incidental environmental impact,

the Service would require the preparation of an EA or EIS.

Under the Migratory Bird Treaty Act (MBTA), the Service thoroughly

reviews and considers anticipated effects on migratory bird populations

before issuing a permit allowing the take of a protected species.

Permits are issued at the Regional level pursuant to regulations and

requirements (50 CFR 210 and are only issued after careful review by

the Region's Permit Review Committee. Like the MBTA, the Bald and

Golden Eagle Protection Act (BGEPA) prohibits the taking of bald and

golden eagles, except as otherwise permitted pursuant to regulations

(50 CFR 22.21 through 22.25). Under MBTA, BGEPA, and applicable

regulations, no permits can be issued for actions that would cause harm

to the species. If there are incidental impacts as a result of the

issuance of the proposed issuance of a permit that are or may be

significant, such permits would require the preparation of an EA or

EIS.

If any permit action, that normally would be categorically

excluded, meets one or more of the exceptions to the categorical

exclusion in 516 DM 2, Appendix 2, an EA or EIS is required. This

requirement is to ensure that proposals with significant impacts or

with impacts that may be significant undergo the NEPA documentation and

decisionmaking process.

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The Habitat Conservation Plan Process Serves Essentially the Same

Purpose as the NEPA Process

One commenter suggested that the HCP process, authorized under

section 10(a)(1)(B) of the ESA, serves essentially the same purpose as

the NEPA analysis in an EA or EIS. We agree that there are some

similarities in the content of the HCP and the NEPA document, such as

the identification of alternative, evaluation of impacts, and public

review. However, some of these features can differ substantially,

depending on the proposal. For example, section 10(a)(1)(B) and

subsequent Service guidance limits the analysis of impacts in the HCP

to affected listed and proposed species by minimizing and mitigating

the incidental take of a listed species. The purpose of the HCP process

is to provide an incidental take permit to the applicant that

authorizes the incidental take of federally listed species in the

context of an HCP. The HCP specifies the impacts that will likely

result from the incidental taking, what steps the applicant will take

to minimize and mitigate such impacts, what alternative actions are not

being utilized, and such other measures as may be required by the

Service.

When considering the NEPA analysis as it relates to an incidental

take permit and the HCP, it is important to be precise about the nature

of the underlying action. The scope of the NEPA analysis covers the

direct, indirect, and cumulative effects of the proposed incidental

take and the mitigation and minimization measures proposed form the

implementation of the HCP. The specific scope of the NEPA analysis will

vary depending on the nature of the scope of activities described in

the HCP. In some cases, the anticipated environmental effects in the

NEPA documents that address the HCP may be confined to effects on

endangered species and other wildlife and plants, simply because there

are no other important effects. In many cases, the NEPA analysis will

focus on the effects of the minimization and mitigation actions on

other wildlife and plants and will examine any alternatives or

conservation strategies that might not otherwise have been considered.

In other cases, the minimization and mitigation activities proposed in

the HCP may affect a wider range of impacts analyzed under NEPA, such

as cultural resources and water use. It is important to keep in mind,

however, that the NEPA analysis for an HCP should be directed towards

analyzing direct, indirect, and cumulative effects that would be caused

by the approval of the HCP, that are reasonably foreseeable, and that

are potentially significant.

Refuge Actions Determined to be Compatible Would not be Subject to

Qualitative and Quantitative Evaluations

One commenter suggests that if the Service made a determination of

compatibility, that would be sufficient to qualify the issuance or

reissuance of refuge special use permit as a categorical exclusion,

thus avoiding any qualitative or quantitative assessment of impacts.

The categorical exclusion 1.4C(5) requires that three criteria be met

before a Refuge action requiring the issuance or reissuance of a permit

can apply: the use must be compatible, must contribute to the purposes

of the refuge, and result in no or negligible anticipated environmental

disturbances. The compatibility criteria is one of three that must be

met before this categorical exclusion can be used. This categorical

exclusion cannot be used unless it meets the requirements of both the

National Wildlife Refuge System Administration Act of 1966, as amended,

and NEPA (40 CFR 1508.4).

An EA or EIS Should be Prepared for the Preparation of Recovery

Plans

One commenter stated that the preparation of recovery plans should

require the preparation of an EA or EIS (section 1.4D). Another

commenter stated that recovery plans should not be categorically

excluded because the issue is currently in litigation. However, several

commenters also stated that recovery plans are not ``action''

documents, and therefore do not constitute a Federal action under NEPA.

The Service continues to consider recovery plans categorically excluded

under section 1.4B(8), as well as under 516 DM 2, Appendix 1.10.

Recovery plans are considered to be advisory in nature and provide

technical assistance. These plans merely provide planning strategies

and identify possible recovery actions and/or tasks that can be

implemented at a later time to help recover the species. The recovery

tasks identified in the plan are discretionary. The plans do not

authorize, fund, or implement a specific task. Through section 1003 of

the ESA amendments of 1988, the Secretary of the Interior provides the

public an opportunity to review and comment on draft recovery plans.

The NEPA process will be applied at the time specific tasks are

proposed to be implemented. The relationship of NEPA to recovery

planning will be clarified in revisions to the Service Recovery Manual.

The Service Should Maintain the Flexibility To Issue EAs and FONSIs

Without Public Review

One commenter stated that the language in section 1.5C indicates

that public review is required for an EA and that this is inconsistent

with CEQ's Regulations, which require review of the FONSI only when an

action is similar to one which normally requires an EIS or when the

nature of the action is without precedent [40 CFR 1501.4(e)(2)]. We

agree that this language is inconsistent and it is also somewhat

confusing. The language in section 1.5C has been revised to indicate

that it is not the EA/FONSI, but the notice of intent to prepare an EIS

that is to be made available to the affected public when an EA

determines that the proposal is a major Federal action significantly

affecting the quality of the human environment.

Although CEQ's Regulations do not normally require public review of

EAs, such review is encouraged. The Service routinely involves the

public in the review of EAs in conjunction with HCPs. The ESA requires

the Service to publish a Notice, called the Notice of Receipt, when a

HCP permit application is received. The final Section 10 Handbook will

provide guidance encouraging Service personnel to publish a joint

notification of the permit application, HCP, and the EA for public

review. In practice, the Service normally provides the public an

opportunity to review the EA along with the HCP to facilitate the

planning and implementation of the incidental take permit.

Designation of Critical Habitat Should Require the Preparation of

an EIS

One commenter stated that the designation of critical habitat

should require the preparation of an EIS. The Department's NEPA

procedures do not specifically state that the designation of critical

habitat is categorically excluded. The Service has maintained that

these designations are exempt from NEPA and therefore, do not require

the preparation of an EA or EIS in conjunction with regulations adopted

pursuant to section 4(a) of the ESA, as amended. A notice outlining the

Service's reason was published in the Federal Register on October 25,

1983 (48 FR 49244). As the commenter notes, two Federal Circuit Courts

have disagreed on this issue (9th and 10th Circuits). Pending

resolution of this issue by the Courts, the Service will not prepare

environmental documents in the 9th Circuit or in other parts of the

United States, consistent with our current position, but the

[[Page 2380]]

Service will prepare EAs for any designations proposed in areas subject

to the 10th Circuit. This admittedly inconsistent approach to the

application of NEPA for the designation of critical habitat will likely

continue until resolved by the Courts.

Departmental Manual

516 DM 6 Appendix 1

Fish and Wildlife Service

1.1 NEPA Responsibility

A. The Director is responsible for NEPA compliance for Fish and

Wildlife Service (Service) activities, including approving

recommendations to the Assistant Secretary (FW) for proposed referrals

to the Council on Environmental Quality (CEQ) of other agency actions

under 40 CFR 1504.

B. Each Assistant Director (Refuges and Wildlife, Fisheries,

International Affairs, External Affairs, and Ecological Services) is

responsible for general guidance and compliance in their respective

areas of responsibility.

C. The Assistant Director for Ecological Services has been

delegated oversight responsibility for Service NEPA compliance.

D. The Division of Habitat Conservation (DHC--Washington), which

reports to the Assistant Director for Ecological Services, is

responsible for internal control of the environmental review and

analysis of documents prepared by other agencies and environmental

statements prepared by the various Service Divisions. This office is

also responsible for preparing Service NEPA procedures, guidelines, and

instructions, and for supplying technical assistance and specialized

training in NEPA compliance, in cooperation with the Service Office of

Training and Education, to Service entities. The Washington Office

Environmental Coordinator, who reports to DHC, provides staff

assistance on NEPA matters to the Director, Assistant Directors, and

their divisions and offices, and serves as the Service NEPA liaison to

the CEQ, the Department's Office of Environmental Policy and Compliance

(OEPC), and NEPA liaisons in other Federal agencies, in accordance with

516 DM 6.2.

E. Each Regional Director is responsible for NEPA compliance in

his/her area of responsibility. The Regional Director should ensure

that Service decisionmakers in his/her area of responsibility contact

affected Federal agencies and State, Tribal and local governments when

initiating an action subject to an EA or EIS. An individual in each

Regional Office, named by title and reporting to the Assistant Regional

Director for Ecological Services, other appropriate Assistant Regional

Director, or the Regional Director, will have NEPA coordination duties

with all program areas at the Regional level similar to those of the

Washington Office Environmental Coordinator, in accordance with 516 DM

6.2.

1.2 General Service Guidance

Service guidance on internal NEPA matters is found in 30 AM 2-3

(organizational structure and internal NEPA compliance), 550 FW1-3 (in

preparation), 550 FW 3 (documenting and implementing Service decisions

on Service actions), and 550 FW 1-2 (replacement to 30 AM 2-3 in

preparation). These guidance documents encourage Service participation

as a cooperating agency with other Federal agencies, encourage early

coordination with other agencies and the public to resolve issues in a

timely manner, and provide techniques for streamlining the NEPA process

and integrating the NEPA process with other Service programs,

environmental laws, and executive orders. Some Service programs have

additional NEPA compliance information related to specific program

planning and decisionmaking activities. Service program guidance on

NEPA matters must be consistent with the Service Manual on NEPA

guidance and Departmental NEPA procedures. For example, additional NEPA

guidance is found in the Federal Aid Handbook (521-523 FW), refuge

planning guidance (602 FW 1-3), Handbook for Habitat Conservation

Planning and Incidental Take Processing, and North American Wetlands

Conservation Act Grant Application Instructions.

1.3 Guidance to Applicants

A. Service Permits. The Service has responsibility for issuing

permits to Federal and State agencies and private parties for actions

which would involve certain wildlife species and/or use of Service-

administered lands. When applicable, the Service may require permit

applicants to provide additional information on the proposal and on its

environmental effects as may be necessary to satisfy the Service's

requirements to comply with NEPA, other Federal laws, and executive

orders.

(1) Permits for the Taking, Possession, Transportation, Sale,

Purchase, Barter, Exportation, or Importation of Certain Wildlife

Species. The Code of Federal Regulations, Part 13, Title 50 (50 CFR 13)

contains regulations for General Permit Procedures. Section 13.3 lists

types of permits and the pertinent Parts of 50 CFR. These include:

Importation, Exportation, and Transportation of Wildlife (Part 14);

Exotic Wild Bird Conservation (Part 15); Injurious Wildlife (Part 16);

Endangered and Threatened Wildlife and Plants (Part 17); Marine Mammals

(Part 18); Migratory Bird Hunting (Part 20); Migratory Bird Permits

(Part 21); Eagle Permits (Part 22); Endangered Species Convention (Part

23); and Importation and Exportation of Plants (Part 24). Potential

permit applicants should request information from the appropriate

Regional Director, or the Office of Management Authority, U.S. Fish and

Wildlife Service, Department of the Interior, Washington, DC 20240, as

outlined in the applicable regulation.

(2) Federal Lands Managed by the Service. Service lands are

administered under the National Wildlife Refuge System Administration

Act of 1966 (16 U.S.C. 668dd-668ee), the Refuge Recreation Act of 1962

(16 U.S.C. 460k-460k-4), and the Alaska National Interest Lands

Conservation Act of 1980 (16 U.S.C. 410hh-3233, 43 U.S.C. 1602-1784).

inherent in these acts is the requirement that only those uses that are

compatible with the purposes of the refuge system unit may be allowed

on Service lands. The Service also complies with Executive Order 12996,

signed March 25, 1996, entitled ``Management and General Public Use of

the National Wildlife Refuge System.'' This Executive Order identifies

general public uses that will be given priority consideration in refuge

planning and management, subject to meeting the compatibility

requirement and if adequate funding is available to administer the use.

Detailed procedures regarding comprehensive management planning and

integration with NEPA are found in the Service Manual (602 FW 1-3).

Reference to this and other National Wildlife Refuge System

requirements are found in the Code of Federal Regulations, Title 50

parts 25-29, 31-36, 60, and 70-71. Under these regulations, these

protections are extended to all Service-administered lands, including

the National Fish Hatchery System.

B. Federal Assistance to States, Local or Private Entities.

(1) Federal Assistance Programs. The Service administers financial

assistance (grants and/or cooperative agreements) to State, local, and

private entities under the Anadromous Fish Conservation Act (CFDA

#15.600); North American Wetlands Conservation Act; Fish and Wildlife

Act of 1956; Migratory Bird Conservation Act; Food Security Act of

[[Page 2381]]

1985; Food, Agriculture, Conservation and Trade Act of 1990;

Partnerships for Wildlife Act of 1992; and Consolidated Farm and Rural

Development Act. The Service administers financial assistance to States

under the Sport Fish Restoration Act (CFDA #15.605), Wildlife

Restoration Act (CFDA #15.611), Endangered Species Act (CFDA #15.612

and 15.615), Coastal Wetlands Planning Protection and Restoration Act

(CFDA #15.614), and Clean Vessel Act of 1992 (CFDA #15.616).

(2) Program Information and NEPA Compliance. Information on how

State, local, and private entities may request funds and assist the

Service in NEPA compliance relative to the Anadromous Fish Conservation

Act may be obtained through the Division of Fish and Wildlife

Management Assistance, U.S. Fish and Wildlife Service, Department of

the Interior, Arlington Square Building, Room 840, Washington, D.C.

20240. Similar information regarding the North American Wetlands

Conservation Act may be obtained through the North American Waterfowl

and Wetlands Office. U.S. Fish and Wildlife Service, Department of the

Interior, Arlington Square Building, Room 110, Washington, D.C. 20240.

All other requests for information on how funds may be obtained and

guidance on how to assist the Service in NEPA compliance may be

obtained through the Chief, Division of Federal Aid, U.S. Fish and

Wildlife Service, Department of the Interior, Arlington Square

Building, Room 140, Washington, D.C. 20240.

1.4 Categorical Exclusions

Categorical exclusions are classes of actions which do not

individually or cumulatively have a significant effect on the human

environment. Categorical exclusions are not the equivalent of statutory

exemptions. If exceptions to categorical exclusions apply, under 516 DM

2, Appendix 2 of the Departmental Manual, the departmental categorical

exclusions cannot be used. In addition to the actions listed in the

departmental categorical exclusions outlined in Appendix 1 of 516 DM 2,

the following Service actions are designated categorical exclusions

unless the action is an exception to the categorical exclusion.

A. General.

(1) Changes or amendments to an approved action when such changes

have no or minor potential environmental impact.

(2) Personnel training, environmental interpretation, public safety

efforts, and other educational activities, which do not involve new

construction or major additions to existing facilities.

(3) The issuance and modification of procedures, including manuals,

orders, guidelines, and field instructions, when the impacts are

limited to administrative effects.

(4) The acquisition of real property obtained either through

discretionary acts or when acquired by law, whether by way of

condemnation, donation, escheat, right-of-entry, escrow, exchange,

lapses, purchase, or transfer and that will be under the jurisdiction

or control of the United States. Such acquisition of real property

shall be in accordance with 602 DM 2 and the Service's procedures, when

the acquisition is from a willing seller, continuance of or minor

modification to the existing land use is planned, and the acquisition

planning process has been performed in coordination with the affected

public.

B. Resource Management. Prior to carrying out these actions, the

Service should coordinate with affected Federal agencies and State,

Tribal, and local governments.

(1) Research, inventory, and information collection activities

directly related to the conservation of fish and wildlife resources

which involve negligible animal mortality or habitat destruction, no

introduction of contaminants, or no introduction of organisms not

indigenous to the affected ecosystem.

(2) The operation, maintenance, and management of existing

facilities and routine recurring management activities and

improvements, including renovations and replacements which result in no

or only minor changes in the use, and have no or negligible

environmental effects on-site or in the vicinity of the site.

(3) The construction of new, or the addition of, small structures

or improvements, including structures and improvements for the

restoration of wetland, riparian, instream, or native habitats, which

result in no or only minor changes in the use of the affected local

area. The following are examples of activities that may be included.

i. The installation of fences.

ii. The construction of small water control structures.

iii. The planting of seeds or seedlings and other minor

revegetation actions.

iv. The construction of small berms or dikes.

v. The development of limited access for routine maintenance and

management purposes.

(4) The use of prescribed burning for habitat improvement purposes,

when conducted in accordance with local and State ordinances and laws.

(5) Fire management activities, including prevention and

restoration measures, when conducted in accordance with departmental

and Service procedures.

(6) The reintroduction or supplementation (e.g., stocking) of

native, formerly native, or established species into suitable habitat

within their historic or established range, where no or negligible

environmental disturbances are anticipated.

(7) Minor changes in the amounts or types of public use on Service

or State-managed lands, in accordance with existing regulations,

management plans, and procedures.

(8) Consultation and technical assistance activities directly

related to the conservation of fish and wildlife resources.

(9) Minor changes in existing master plans, comprehensive

conservation plans, or operations, when no or minor effects are

anticipated. Examples could include minor changes in the type and

location of compatible public use activities and land management

practices.

(10) The issuance of new or revised site, unit, or activity-

specific management plans for public use, land use, or other management

activities when only minor changes are planned. Examples could include

an amended public use plan or fire management plan.

(11) Natural resource damage assessment restoration plans, prepared

under sections 107, 111, and 122(j) of the Comprehensive Environmental

Response Compensation and Liability Act (CERCLA); section 311(f)(4) of

the Clean Water Act; and the Oil Pollution Act; when only minor or

negligible change in the use of the affected areas is planned.

C. Permit and Regulatory Functions.

(1) The issuance, denial, suspension, and revocation of permits for

activities involving fish, wildlife, or plants regulated under 50 CFR

Chapter 1, Subsection B, when such permits cause no or negligible

environmental disturbance. These permits involve endangered and

threatened species, species listed under the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES), marine mammals, exotic birds, migratory birds, eagles, and

injurious wildlife.

(2) The issuance of ESA section 10(a)(1)(B) ``low-effect''

incidental take permits that, individually or cumulatively, have a

minor or negligible

[[Page 2382]]

effect on the species covered in the habitat conservation plan.

(3) The issuance of special regulations for public use of Service-

managed land, which maintain essentially the permitted level of use and

do not continue a level of use that has resulted in adverse

environmental effects.

(4) The issuance or reissuance of permits for limited additional

use of an existing right-of-way for underground or above ground power,

telephone, or pipelines, where no new structures (i.e., facilities) or

major improvement to those facilities are required; and for permitting

a new right-of-way, where no or negligible environmental disturbances

are anticipated.

(5) The issuance or reissuance of special use permits for the

administration of specialized uses, including agricultural uses, or

other economic uses for management purposes, when such uses are

compatible, contribute to the purposes of the refuge system unit, and

result in no or negligible environmental effects.

(6) The denial of special use permit applications, either initially

or when permits are reviewed for renewal, when the proposed action is

determined not compatible with the purposes of the refuge system unit.

(7) Activities directly related to the enforcement of fish and

wildlife laws, not included in 516 DM 2, Appendix 1.4. These activities

include:

(a) Assessment of civil penalties.

(b) Forfeiture of property seized or subject to forfeiture.

(C) The issuance or reissuance of rules, procedures, standards, and

permits for the designation of ports, inspection, clearance, marking,

and license requirements pertaining to wildlife and wildlife products,

and for the humane and healthful transportation of wildlife.

(8) Actions where the Service has concurrence or coapproval with

another agency and the action is a categorical exclusion for that

agency. This would normally involve one Federal action or connected

actions where the Service is a cooperating agency.

D. Recovery Plans.

Issuance of recovery plans under section 4(f) of the ESA.

E. Financial Assistance.

(1) State, local, or private financial assistance (grants and/or

cooperative agreements), including State planning grants and private

land restorations, where the environmental effects are minor or

negligible.

(2) Grants for categorically excluded actions in paragraphs A, B,

and C, above; and categorically excluded actions in Appendix 1 of 516

DM 2.

1.5 Actions Normally Requiring an EA

A. Proposals to establish most new refuges and fish hatcheries; and

most additions and rehabilitations to existing installations.

B. Any habitat conservation plan that does not meet the definition

of ``low-effect'' in the Section 10(a)(1)(B) Handbook.

C. If, for any of the above proposals, the EA determines that the

proposal is a major Federal action significantly affecting the quality

of the human environment, an EIS will be prepared. The determination to

prepare an EIS will be made by a notice of intent in the Federal

Register and by other appropriate means to notify the affected public.

1.6 Major Actions Normally Requiring an EIS

A. The following Service proposals, when determined to be a major

Federal action significantly affecting the quality of the human

environment, will normally require the preparation of an EIS.

(1) Major proposals establishing new refuge system units, fish

hatcheries, or major additions to existing installations, which involve

substantive conflicts over existing State and local land use,

significant controversy over the environmental effects of the proposal,

or the remediation of major on-site sources of contamination.

(2) Master or comprehensive conservation plans for major new

installations, or for established installations, where major new

developments or substantial changes in management practices are

proposed.

B. If, for any of the above proposals it is initially determined

that the proposal is not a major Federal action significantly affecting

the quality of the human environment, an EA will be prepared and

handled in accordance with 40 CFR 1501.4(e)(2). If the EA subsequently

indicates the proposed action will cause significant impacts, an EIS

will be prepared.

Dated: January 13, 1997.

Willie Taylor,

Director, Office of Environmental Policy and Compliance, Office of the

Secretary, U.S. Department of the Interior.

[FR Doc. 97-1071 Filed 11-15-97; 8:45 am]

BILLING CODE 4310-55-M