Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 775

RIN 0703-AA51

Policies and Responsibilities for Implementation of the National

Environmental Policy Act Within the Department of the Navy

AGENCY: Department of the Navy, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy is revising its regulations which

establish the responsibilities and procedures for complying with the

National Environmental Policy Act (NEPA). This revision clarifies when

certain Department of the Navy actions must be studied to determine

their effect on the human environment and what types of activities are

excluded from the NEPA documentation requirements.

DATES: Comments must be received by April 26, 1999.

ADDRESSES: Interested parties should submit written comments to: Mr.

Lew Shotten, Office of the Assistant Secretary of the Navy

(Installations and Environment), 2000 Navy Pentagon, Washington, DC

20350.

FOR FURTHER INFORMATION CONTACT: Mr. Lew Shotten, Office of the

Assistant Secretary of the Navy (Installations and Environment), (703)

588-6671.

SUPPLEMENTARY INFORMATION: The National Environmental Policy Act of

1969 (NEPA) (42 U.S.C. 4321 et seq.) establishes national policy and

goals for protection of the environment. Section 102(2) of NEPA

contains certain procedural requirements directed toward the attainment

of such goals. In particular, all federal agencies are required to give

appropriate consideration to the environmental effects of their

proposed actions in their decisionmaking and to prepare detailed

environmental statements on recommendations or reports significantly

affecting the quality of the human environment.

Executive Order 11991 of May 24, 1977, directed the Council on

Environmental Quality (CEQ) to issue regulations to implement

procedural provisions of NEPA. Accordingly, CEQ issued final NEPA

regulations (40 CFR parts 1500-1508) on November 29, 1978, which are

binding on all federal agencies as of July 30, 1979. These regulations

require each federal agency, as necessary, to adopt implementing

procedures to supplement the CEQ regulations. Section 1507.3(b) of the

CEQ regulations identifies those sections of the regulations which must

be addressed in agency procedures. These regulations revise the

Department's implementing regulations that were originally issued on

August 20, 1990.

Significant changes that this new rule brings about include:

revision of and additions to the DON list of approved categories of

actions excluded (CATEXed) from further documentation under NEPA;

revised criteria for disallowing the application of listed CATEXs; and,

assignment of responsibilities to the Assistant Secretary of the Navy

(Research, Development and Acquisition), the General Counsel of the

Navy, and the Judge Advocate General of the Navy.

The Department of the Navy has determined that this regulation is

not a significant rule as defined by Executive Order 12866 and is not

subject to the relevant provisions of the Regulatory Flexibility Act of

1980 (5 U.S.C. 605(b)).

List of Subjects in 32 CFR Part 775

Environmental impact statements.

Accordingly, part 775 of chapter VI of title 32 of the Code of

Federal Regulations is proposed to be revised to read as follows:

PART 775--POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE

NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY

Sec.

775.1 Purpose.

775.2 Scope.

775.3 Definitions.

775.4 Policy.

775.5 NEPA documentation.

775.6 Categorical exclusions.

775.7 Responsibilities.

775.8 Delegations of authority.

775.9 Completed documents.

Authority: 49 U.S.C. 44502(d).

Sec. 775.1 Purpose.

To implement the provisions of the National Environmental Policy

Act (NEPA), 42 U.S.C. 4321 et. seq., 40 CFR 1500-1508, and other

regulations, laws, Executive Orders and treaties and agreements that

direct environmental planning procedures, and to assign

responsibilities within the Department of the Navy (DON) for

preparation, review, and approval of environmental documents prepared

under NEPA.

Sec. 775.2 Scope.

The policies and responsibilities set out in this part apply to the

DON, including the Office of the Secretary of the Navy, and Navy and

Marine Corps commands, operating forces, shore establishments, and

reserve components.

Sec. 775.3 Definitions.

(a) Action. A new or continuing activity, program, project , or

exercise which is under the control and direction of the DON and that

may change the physical environment or impact natural resources. An

action is considered a proposed action and the requirements of this

instruction become applicable when the action proponent has identified

a program, project, exercise, or other activity and is actively

preparing to make a decision among one or more alternative means of

executing the program, project, exercise or other activity.

(b) Action Proponent. The commander, commanding officer, or

civilian director of a unit, activity, or organization who initiates a

proposal for action, as defined in 40 CFR 1508.23, and who has command

and control authority over the action once it is authorized. For some

actions, the action proponent will also serve as the decisionmaking

authority for that action. In specific circumstances, the action

proponent and decisionmaker may be identified in Navy Regulations,

other SECNAV Instructions, operational instructions and orders,

acquisition instructions, and other sources which set out authority and

responsibility within the DON.

(c) Environmental Impact Statement (EIS). An environmental document

prepared according to the requirements

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of Council on Environmental Quality (CEQ) regulations (40 CFR parts

1500-1508) for a major action which will have a significant effect on

the quality of the human environment.

(d) Environmental Assessment (EA). A concise document prepared

according to the requirements of 40 CFR parts 1500-1508 which briefly

provides sufficient evidence and analysis for determining whether to

prepare an EIS. An EA aids compliance with NEPA when no EIS is

necessary and facilitates preparation of an EIS when one is necessary.

(e) Categorical Exclusion (CATEX). A published category of actions

which, under normal conditions, are excluded from further documentation

requirements under NEPA.

(f) Record of Decision (ROD). An environmental document signed by

an appropriate official of the DON. A ROD sets out a concise summary of

the final decision and selected measures for mitigation (if any) of

adverse environmental impacts of the alternative chosen from those

considered in an EIS.

(g) Finding of No Significant Impact (FONSI). A document which sets

out the reasons why an action not otherwise categorically excluded will

not have a significant impact on the human environment.

Sec. 775.4 Policy.

(a) It is the DON policy regarding NEPA, consistent with its

mission and the environmental laws and regulations of the United States

and applicable international treaties and agreements, to:

(1) Initiate the NEPA processes as soon as possible in the course

of identifying a proposed action.

(2) Develop and carefully consider a reasonable range of

alternatives for achieving the purpose(s) of proposed actions.

(3) Assign responsibility for preparation of action specific

environmental analysis under NEPA or Executive Order 12114 to the

action proponent. The action proponent should understand the plans,

analyses, and environmental documents related to that action.

(b) NEPA is intended to ensure that environmental issues are fully

considered and incorporated into the federal decision making process.

Consequently, actions for which the DON has no decision making

authority, such as those carried out under a non discretionary mandate

from Congress (e.g., congressional direction to transfer federal

property to a particular entity for a particular purpose) or as an

operation of law (e.g., reversionary interests in land recorded at the

time the property was obtained), are not major federal actions in the

context of NEPA and require no analysis or documentation under NEPA or

CEQ regulations.

Sec. 775.5 NEPA documentation.

(a) An EIS must be prepared for proposed major federal actions that

clearly will have significant impacts on the human environment. The

agency decision in the case of an EIS is reflected in a ROD.

(b) Where a proposed major federal action has the potential for

significantly affecting the human environment, but it is not clear

whether the impacts of that particular action will in fact be

significant, or where the nature of an action precludes use of a

categorical exclusion, an EA may be used to assist the agency in

determining whether to prepare an EIS. If the agency determination in

the case of an EA is that there is no significant impact on the

environment, the findings will be reflected in a FONSI. If the EA

determines that the proposed action to is likely to significantly

affect the environment (even after mitigation), than an EIS will be

prepared.

(c) Where a federal agency has determined through experience,

studies, or prior NEPA analysis that impacts normally resulting from a

particular category of actions are not significant, a categorical

exclusion (CATEX) may be used to exclude the proposed action from

further analysis.

(d) Even though a proposed action generally is covered by a listed

categorical exclusion, a categorical exclusion will not be used if the

proposed action:

(1) Would adversely affect public health or safety;

(2) Involves effects on the human environment that are highly

uncertain, involve unique or unknown risks, or which are scientifically

controversial;

(3) Establishes precedents or makes decisions in principle for

future actions, which have the potential for significant impacts;

(4) Threatens a violation of federal, state, or local environmental

laws applicable to the Department of the Navy; or

(5) Involves an action that, as determined in coordination with the

appropriate resource agency, may:

(i) Have an adverse effect on federally-listed endangered/

threatened species or marine mammals;

(ii) Have an adverse effect on coral reefs or on federally

designated wilderness areas, wildlife refuges, marine sanctuaries, or

park lands;

(iii) Adversely affect the size, function or biological value of

wetlands and is not covered by a nation-wide or regional permit;

(iv) Have an adverse effect on archaeological resources or

resources (including but not limited to ships, aircraft, vessels and

equipment) listed or determined eligible for listing on the National

Register of Historic Places; and

(v) Result in an uncontrolled or unpermitted releases of hazardous

substances or require a conformity determination under standards of the

Clean Air Act General Conformity Rule.

Sec. 775.6 Categorical exclusions.

The following are actions which, under normal conditions, are

categorically excluded from further documentation requirements under

NEPA. These exclusions are separated into two groupings. Group I

consists of actions which clearly do not have the potential for causing

significant impacts on the human environment and consequently do not

meet the basic definition of major federal action in the context of

NEPA. Group II consists of actions which have the potential for causing

significant impacts on the human environment but which, through

experience, studies, or prior NEPA analysis, have been shown not to

have significant environmental impacts. A decision to forego

preparation of an EA or EIS on the basis of one or more categorical

exclusions in Group II shall be documented by identifying the

applicable CATEX and describing the proposed action to the extent

required to support selection and use of a CATEX. Application of a

categorical exclusion does not affect the applicability of other laws/

regulations (e.g., Endangered Species Act, Clean Water Act, and

National Historic Preservation Act) to the proposed action.

(a) Group I Categorical Exclusions.

(1) Routine fiscal, administrative, and recreation/welfare

activities, including administration of contracts;

(2) Routine law and order activities performed by military

personnel, military police, or other security personnel, including

physical plant protection and security;

(3) Routine use and operation of existing facilities, laboratories,

and equipment;

(4) Administrative studies, surveys, and data collection;

(5) Issuance or modification of administrative procedures,

regulations, directives, manuals, or policy;

(6) Military ceremonies;

(7) Routine procurement of goods and services;

(8) Routine repair and maintenance of buildings, facilities,

vessels, aircraft and

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equipment associated with existing operations and activities (e.g.,

localized pest management activities, minor erosion control measures,

painting, refitting);

(9) Training of an administrative or classroom nature; and

(10) Routine personnel actions;

(11) Routine movement of mobile assets (such as ships and aircraft)

for homeport reassignments, for repair/overhaul, or to train/perform as

operational groups where no new support facilities are required;

(12) Routine procurement, management, storage, handling,

installation, and disposal of commercial items, where the items are

used and handled in accordance with applicable regulations (e.g.,

consumables, electronic components, computer equipment, pumps).

(b) Group II Categorical Exclusions.

(1) Actions to conform or provide conforming use specifically

required by new or existing applicable legislation or regulations,

(e.g., hush houses for aircraft engines, scrubbers for air emissions,

improvements to stormwater, and sanitary and industrial wastewater

collection and treatment systems, and installation of fire fighting

equipment);

(2) The modification of existing systems or equipment when the

environmental effects will remain substantially the same, and the use

is consistent with applicable regulations;

(3) Movement, handling and distribution of materials, including

hazardous materials/wastes that when moved, handled, or distributed are

in accordance with applicable regulations;

(4) New activities conducted at established laboratories and

plants, (including contractor-operated laboratories and plants) where

all airborne emissions, waterborne effluent, external ionizing and non-

ionizing radiation levels, outdoor noise, and solid and bulk waste

disposal practices are in compliance with existing applicable federal,

state, and local laws and regulations;

(5) Studies, data, and information gathering that involve no

permanent physical change to the environment, (e.g., topographic

surveys, wetlands mapping, surveys for evaluating environmental damage,

and engineering efforts to support environmental analyses);

(6) Temporary placement and use of simulated target fields (e.g.,

inert mines, simulated mines, or passive hydrophones) in fresh,

estuarine, and marine waters for the purpose of military training

exercises or research, development, test and evaluation;

(7) Installation and operation of passive scientific measurement

devices (e.g., antenna, tide gauges, weighted hydrophones, salinity

measurement devices, and water quality measurement devices) where use

will not result in changes in operations tempo and is consistent with

applicable regulations;

(8) Short term increases in air operations up to 50 percent of the

typical operation rate, or increases of 50 operations per day,

whichever is less;

(9) Decommissioning, disposal, or transfer of Navy vessels,

aircraft, vehicles, and equipment when conducted in accordance with

applicable regulations, including those regulations applying to removal

of hazardous materials;

(10) Non-routine repair, renovation, and donation or other transfer

of structures, vessels, aircraft, vehicles, landscapes or other

contributing elements of facilities listed or eligible for listing on

the National Register of Historic Places which will result in no

adverse effect;

(11) Hosting or participating in public events (e.g., air shows,

open houses, Earth Day events, and athletic events) where no permanent

changes to existing infrastructure (e.g., road systems, parking and

sanitation systems) are required to accommodate all aspects of the

event;

(12) Military training conducted on or over nonmilitary land or

water areas, where such training is consistent with the type and tempo

of existing non-military airspace, land, and water use (e.g., night

compass training, forced marches along trails, roads and highways, use

of permanently established ranges, use of public waterways, or use of

civilian airfields);

(13) Transfer of real property from DON to another military

department or to another federal agency;

(14) Receipt of property from another federal agency when there is

no substantial change in land use;

(15) Minor land acquisitions or disposals where anticipated or

proposed land use is consistent with existing land use and zoning, both

in type and intensity;

(16) Disposal of excess easement interests to the underlying fee

owner;

(17) Renewals and minor amendments of existing real estate grants

for use of government-owned real property where no significant change

in land use is anticipated;

(18) Land withdrawal continuances or extensions which merely

establish time periods and where there is no significant change in land

use;

(19) Renewals and/or initial real estate ingrants and outgrants

involving existing facilities and land wherein use does not change

significantly (e.g., leasing of federally-owned or privately-owned

housing or office space, and agricultural outleases);

(20) Grants of license, easement, or similar arrangements for the

use of existing rights-of-way or incidental easements complementing the

use of existing rights-of-way for use by vehicles (not to include

significant increases in vehicle loading); electrical, telephone, and

other transmission and communication lines; water, wastewater,

stormwater, and irrigation pipelines, pumping stations, and facilities;

and for similar utility and transportation uses;

(21) New construction that is consistent with existing land use

and, when completed, the use or operation of which complies with

existing regulatory requirements (e.g., a building within a cantonment

area with associated discharges/runoff within existing handling

capacities);

(22) Demolition, disposal, or improvements involving buildings or

structures not on or eligible for listing on the National Register of

Historic Places and when in accordance with applicable regulations

including those regulations applying to removal of asbestos, PCBs, and

other hazardous materials;

(23) Acquisition, installation, and operation of utility (e.g.,

water, sewer, electrical) and communication systems, (e.g., data

processing cable and similar electronic equipment) which use existing

rights of way, easements, distribution systems, and/or facilities;

(24) Decisions to close facilities, decommission equipment, and/or

temporarily discontinue use of facilities or equipment, where the

facility or equipment is not used to prevent/control environmental

impacts);

(25) Maintenance dredging and debris disposal where no new depths

are required, applicable permits are secured, and disposal will be at

an approved disposal site;

(26) Relocation of personnel into existing federally owned or

commercially-leased space that does not involve a substantial change

affecting the supporting infrastructure (e.g., no increase in vehicular

traffic beyond the capacity of the supporting road network to

accommodate such an increase);

(27) Pre-lease exploration activities for oil, gas or geothermal

reserves, (e.g., geophysical surveys);

(28) Natural resources management actions where underlying natural

resources management decisions have been analyzed in an EA or EIS;

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(29) Installation of devices to protect human or animal life,

(e.g., raptor electrocution prevention devices, fencing to restrict

wildlife movement onto airfields, and fencing and grating to prevent

accidental entry to hazardous areas);

(30) Reintroduction of endemic or native species (other than

endangered or threatened species) into their historic habitat when no

substantial site preparation is involved;

(31) Temporary closure of public access to DON property in order to

protect human or animal life;

(32) Actions similar in type, intensity and setting (including

physical location and, where pertinent, time of year) to other actions

for which it has been determined, in a DON EA or EIS, that there were

no significant environmental impacts;

(33) Actions which require the concurrence or approval of another

federal agency where the action is a categorical exclusion of the other

federal agency.

Sec. 775.7 Responsibilities.

(a) The Assistant Secretary of the Navy (Installations and

Environment) (ASN(I&E)) shall:

(1) Act as principal liaison with the Office of the Secretary of

Defense, the Council on Environmental Quality, the Environmental

Protection Agency, other federal agencies, Congress, state governments,

and the public with respect to significant environmental planning

matters.

(2) Direct the preparation of appropriate environmental documents

and, with respect to those matters governed by SECNAV Instruction

5000.2B of December 16, 1996, advise the Assistant Secretary of the

Navy (Research Development and Acquisition (ASN(RD&A)) concerning

environmental issues and concerning the appropriate level of

environmental planning document needed in any particular circumstance.

(3) Except for proposed acquisition-related actions addressed in

paragraph (b)(2) of this section, review, sign, and approve for

publication, as appropriate, documents prepared under NEPA.

(4) Establish and publish a list of categorical exclusions for the

DON.

(b) The Assistant Secretary of the Navy (Research, Development and

Acquisition (ASN(RD&A)) shall, in accordance with SECNAV Instruction

5000.2B of December 16, 1996:

(1) Ensure that DON acquisition programs and procurements comply

with environmental laws, Executive Orders, regulations, and applicable

Department of Defense (DOD) and DON environmental planning policies.

(2) Review, sign, and approve for publication, as appropriate,

environmental documents prepared under NEPA for proposed acquisition-

related actions.

(c) The General Counsel of the Navy and the Judge Advocate General

of the Navy shall:

(1) Ensure that legal advice for compliance with environmental

planning requirements is available to all decision-makers.

(2) Advise the Secretary of the Navy, the Chief of Naval

Operations, and the Commandant of the Marine Corps as to the legal

requirements that must be met, and the conduct and disposition of all

legal matters arising in the context of environmental planning.

(d) The Chief of Naval Operations (CNO) and the Commandant of the

Marine Corps (CMC) shall:

(1) Implement effective environmental planning throughout their

respective Services.

(2) Prepare and issue instructions or orders to implement

environmental planning policies of the DON. Forward proposed CNO/CMC

environmental planning instructions or orders to ASN(I&E) and, when

appropriate, ASN(RD&A), for review and comment prior to issuance.

(3) Ensure that subordinate commands establish procedures for

implementing mitigation measures described in environmental planning

documents.

(4) Provide coordination as required for the preparation of

environmental documents for actions initiated by non-DON/DOD entities,

state or local agencies and/or private individuals for which Service

involvement may be reasonably foreseen.

(5) Bring environmental planning matters that involve controversial

issues or which may affect environmental planning policies or their

implementation to the attention of ASN(I&E), and where appropriate

ASN(RD&A), for coordination and determination.

Sec. 775.8 Delegations of authority.

(a) The ASN(I&E) may delegate his/her responsibilities under this

instruction for review, approval and/or signature of EISs and RODs to

appropriate Executive Schedule/Senior Executive Service civilians or

flag/general officers. ASN (I&E), CNO and CMC may delegate all other

responsibilities assigned in this instruction as deemed appropriate.

(b) The ASN(RD&A) delegation of authority for approval and

signature of documents under NEPA is contained in reference (g).

(c) Previously authorized delegations of authority are continued

until revised or withdrawn.

Sec. 775.9 Completed documents.

This part does not invalidate, alter, or amend any NEPA documents

already completed. Where only draft NEPA documents have been completed

under previous guidance, final documents shall be completed in

accordance with this part.

Dated: February 17, 1999.

Ralph W. Corey,

Commander, U.S. Navy, Judge Advocate General's Corps, Alternate Federal

Register Liaison Officer.

[FR Doc. 99-4705 Filed 2-24-99; 8:45 am]

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