Revision of HHS National Environmental Policy Act Compliance Procedures and Procedures for Environmental Protection
Federal RegisterJan 11, 1999
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DATES: Written comments must be received on or before February 10,
1999.
SUMMARY: In accordance with the provisions of the National
Environmental Policy Act of 1969 (NEPA), as amended, and other related
environmental laws, executive orders, and regulations, the Department
of Health and Human Services published procedures in 1980 for
conducting environmental reviews, preparing necessary documentation and
making program decisions to ensure that environmental protection is an
integral part of HHS operations. These procedures have recently been
revised and updated. Comments from interested parties are solicited.
FOR FURTHER INFORMATION CONTACT: Dick Green, Office of Facilities
Services, Department of Health and Human Services, Hubert H. Humphrey
Building, Room 729D, 200 Independence Avenue, SW, Washington, DC,
20201. Telephone (202) 619-1994, FAX (202) 619-2692, E-mail Address:
[email protected]
Dated: December 23, 1998.
John J. Callahan,
Assistant Secretary for Management and Budget.
HHS Chapter 30--General Administration Manual; HHS Transmittal 98.2
PART 30--ENVIRONMENTAL PROTECTION
Contents
Chapter and Title
30-00 Environmental Protection
30-10 Policy
30-20 Administrative Requirements
30-30 General Environmental Review Procedures
30-40 Natural Asset Review
30-50 National Environmental Policy Act (NEPA) Review
30-60 Energency Planning and Community Right-To-Know Act of 1986
(EPCRA) Requirements
30-70 Pollution Prevention Act of 1990 (PPA) Requirements
30-80 Executive Order 12856, Federal Compliance with Right-To-Know
Laws and Pollution Prevention Requirements
30-90 Executive Order 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition
HHS Chapter 30-00--General Administration Manual; HHS Transmittal
98.2
Subject: Environmental Protection
30-00-00....................................... Purpose
10....................................... Chapter Organization
and Content
20....................................... Environmental Statutes
and Executive Orders
30....................................... Definitions
30-00-00 Purpose
This Chapter summarizes and provides guidance on many current
statutory, regulatory and Executive Order environmental authorities. It
does not create or confer any rights on any person and it is not
intended to be used as the sole source of information for any of the
referenced environmental compliance requirements. The Department
recognizes that any of the authorities described herein may be revised
after the issuance of the Chapter. The current specific environmental
statute, regulation or Executive Order should be reviewed when
questions arise. To the extent that any statement in this chapter
should conflict with a current applicable statutory, regulatory or
Executive Order requirement, that statutory, regulatory or Executive
Order requirement shall supersede any inconsistent provision of this
GAM Chapter. Additional questions should be referred to the OPDIV
environmental officer, the Departmental environmental program manager,
and/or the Office of the General Counsel.
Part 30 of the General Administration Manual establishes
Departmental policy and procedures with respect to protection of the
environment and the preservation of natural resources. Under Federal
statutes, regulations, and Executive Orders, all Federal Departments
and agencies are required to comply with all applicable Federal, State
and local environmental statutes, laws and regulations and must take
into account the environmental consequences of their activities. In
many cases, the activities of non-Federal organizations which operate
under the authority or with the support of Federal Departments or
agencies are also included.
This Part supersedes Part 30, Environmental Protection, 1980, with
the exception that Part 30, Chapter 30-40, Cultural Asset Review
(Historical Preservation) remains in effect until a separate revised
Chapter dealing with this subject is published.
30-00-10 Chapter Organization and Content
The chapters of Part 30 are organized as follows:
Chapter 30-00 provides a list and summary descriptions of
certain environmental laws and Executive Orders, and a list of
definitions.
Chapter 30-10 and 30-20 provide overall Departmental
policy with respect to environmental protection and a summary of
internal administrative procedures which Departmental organizations
must implement.
Chapter 30-30 provides a general summary of the
environmental review process for Departmental activities under the
National Environmental Policy Act and statutes and Executive Orders
that require protection and preservation of natural and cultural
assets.
Chapters 30-40 through 30-90 provide detailed requirements
for certain environmental statutes and Executive Orders covered by Part
30.
30-00-20 Environmental Statutes and Executive Orders
Federal agencies are potentially subject to more than 150 Federal
statutes and Executive Orders governing the environment. Many of these
laws are noted in Table 1.
Environmental laws and implementing regulations that significantly
impact the Department are summarized in the following subsections.
Detailed guidance is contained in other chapters of Part 30 for certain
environmental statutes and Executive Orders. Table 1, as follows,
indicated the location of statutes or Executive Orders that are
discussed in Part 30.
Table 1.--Statutes and Executive Orders
----------------------------------------------------------------------------------------------------------------
Environmental statute or executive order Citation Part 30 location
----------------------------------------------------------------------------------------------------------------
Acid Precipitation Act of 1980............... 42 U.S.C. Secs. 8901 to ......................................
8912.
Act to Prevent Pollution From Ships.......... 33 U.S.C. Secs. 1901 to ......................................
1912.
Agricultural Act of 1970..................... 16 U.S.C. Secs. 1501 to ......................................
1510.
American Indian Religious Freedom Act........ 42 U.S.C. Sec. 1996..... ......................................
[[Page 1657]]
Antarctic Protection Act of 1990............. 16 U.S.C. Secs. 2461 to ......................................
2466.
Antiquities Act of 1906...................... 16 U.S.C. Secs. 431 to 30-00-20K
433.
Archeological and Historic Preservation Act 16 U.S.C. Secs. 469 to 30-00-20K
of 1974. 469c-1.
Archeological Resources Protection Act of 16 U.S.C. Secs. 470aa to ......................................
1979. 470mm.
Asbestos Hazard Emergency Response Act of 15 U.S.C. Secs. 2641 to ......................................
1986. 2656.
Atomic Energy Act of 1954.................... 42 U.S.C. Secs. 2011 to ......................................
2297g-4.
Aviation Safety and Noise Abatement Act of 49 U.S.C. app. Secs. ......................................
1979. 2101 to 2125.
Clean Air Act................................ 42 U.S.C. Secs. 7401 to 30-00-20A
7671q.
Clean Vessel Act of 1992..................... 33 U.S.C. Sec. 1322 note ......................................
Clean Water Act [Federal Water Pollution 33 U.S.C. Secs. 1251 to 30-00-20B
Control Act]. 1387.
Coastal Barrier Resources Act................ 16 U.S.C. Secs. 3501 to ......................................
3510.
Coastal Wetlands Planning Protection, and 16 U.S.C. Secs. 3951 to ......................................
Restoration Act. 3956.
Coastal Zone Management Act of 1972.......... 16 U.S.C. Secs. 1451 to 30-00-20C; Ch. 30-40
1464.
Community Environmental Response Facilitation 42 U.S.C. Secs. 9620 ......................................
Act. note.
Comprehensive Environmental Response, 42 U.S.C. Secs. 9601 to 30-00-20D
Compensation, and Liability Act of 1980 9675.
[``Superfund''].
Emergency Planning and Community Right-to- 42 U.S.C. Secs. 11001 to 30-00-20E; Ch. 30-60
Know Act of 1986. 11050.
Emergency Wetlands Resources Act of 1986..... 16 U.S.C. Secs. 3901 to ......................................
3932.
Endangered Species Act of 1973............... 16 U.S.C. Secs. 1531 to 30-00-20F; Ch. 30-40
1544.
Energy Policy Act of 1992.................... 42 U.S.C. Secs. 13201 to 30-00-20G
13556.
Energy Policy and Conservation Act........... 42 U.S.C. Secs. 6201 to ......................................
6422.
Energy Reorganization Act of 1974............ 42 U.S.C. Secs. 5801 to ......................................
5891.
Energy Supply and Environmental Coordination 15 U.S.C. Secs. 791 to ......................................
Act of 1974. 798.
Environmental Programs Assistance Act of 1984 42 U.S.C. Sec. 4368a.... ......................................
Environmental Quality Improvement Act of 1970 42 U.S.C. Secs. 4371 to ......................................
4375.
Farmland Protection Policy Act............... 7 U.S.C. Secs. 4201 to ......................................
4209.
Federal Facility Compliance Act of 1992...... 42 U.S.C. Secs. 6903, ......................................
6908, 6924, 6927, 6939c,
6939d, 6961, 6965.
Federal Food, Drug, and Cosmetic Act......... 21 U.S.C. Secs. 301 to ......................................
397.
Federal Insecticide, Fungicide, and 7 U.S.C. Secs. 136 to 30-00-20H
Rodenticide Act. 136y.
Federal Land Policy and Management Act of 43 U.S.C. Secs. 1701 to ......................................
1976. 1784.
Federal Oil and Gas Royalty Management Act of 30 U.S.C. Secs. 1701 to ......................................
1982. 1757.
Fish and Wildlife Act of 1956................ 16 U.S.C. Secs. 742a to ......................................
742d, 742e to 742j-2.
Fish and Wildlife Coordination Act........... 16 U.S.C. Secs. 661 to 30-00-20I; Ch. 30-40
666c.
Flood Disaster Protection Act of 1973........ 42 U.S.C. Secs. 2414, ......................................
4001 to 4129.
Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1600 to ......................................
Planning Act of 1974. 1614.
Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1641 to ......................................
Research Act of 1978. 1649.
Forest Ecosystems and Atmospheric Pollution 16 U.S.C. Secs. 1642,
Research Act of 1988. 1642 note.
Geothermal Energy Research, Development and 30 U.S.C. Secs. 1101 to
Demonstration Act of 1974. 1164.
Global Change Research Act of 1990........... 15 U.S.C. Secs. 2921 to
2961.
Global Climate Protection Act of 1987........ 15 U.S.C. Sec. 2901 note
Hazardous Substance Response Revenue Act of 26 U.S.C. Secs. 4611-
1980. 4612, 4661-4662.
Historic Sites Act of 1935 [Historic Sites, 16 U.S.C. Secs. 461 to 30-00-20J
Buildings, and Antiquities Act]. 467.
Indian Environmental General Assistance 42 U.S.C. Sec. 4368b....
Program Act of 1992.
Lead-Based Paint Exposure Reduction Act...... 15 U.S.C. Secs. 2681 to
2692.
Lead-Based Paint Poisoning Prevention Act.... 42 U.S.C. Secs. 4821 to
4846.
Lead Contamination Control Act of 1988....... 42 U.S.C. Secs. 300j-21
to 300j-26.
Low-Level Radioactive Waste Policy Act....... 42 U.S.C. Secs. 2021b to
2021j.
Marine Mammal Protection Act of 1972......... 16 U.S.C. Secs. 1361 to
1421h.
Marine Protection, Research, and Sanctuaries 16 U.S.C. Secs. 1431 to 30-00-20K; Ch. 30-40
Act of 1972. 1445a; 33 U.S.C. Secs.
1401 to 1445.
Medical Waste Tracking Act of 1988........... 42 U.S.C. Secs. 6992 to
6992K.
Migratory Bird Treaty Act.................... 16 U.S.C. Secs. 703 to
712.
Mining and Mineral Resources Research 30 U.S.C. Secs. 1221 to
Institute Act of 1984. 1230a.
Multiple-Use Sustained-Yield Act of 1960..... 16 U.S.C. Secs. 528 to
531.
National Climate Program Act................. 15 U.S.C. Secs. 2901 to
2908.
National Contaminated Sediment Assessment and 33 U.S.C. Sec. 1271 note
Management Act.
National Environmental Policy Act of 1969.... 42 U.S.C. Secs. 4321 to 30-00-20L; Ch. 30-50
4370d.
National Forest Management Act of 1976....... 16 U.S.C. Secs. 472a,
521b, 1600, 1611 to 1614.
National Environmental Education Act......... 20 U.S.C. Secs. 5501 to
5510.
National Historic Preservation Act........... 16 U.S.C. Secs. 470 to 30-00-20J
470x-6.
Native American Graves Protection & 25 U.S.C. Secs. 3001 to ......................................
Repatriation Act. 3013.
Noise Control Act of 1972.................... 42 U.S.C. Secs. 4901 to ......................................
4918.
Nonindigenous Aquatic Nuisance Prevention and 16 U.S.C. Secs. 4701 to ......................................
Control Act of 1990. 4751.
Nuclear Waste Policy Act of 1982............. 42 U.S.C. Secs. 10101 to ......................................
10270.
Occupational Safety and Health Act of 1970... 29 U.S.C. Secs. 651 to 30-00-20M
678.
Ocean Dumping Ban Act of 1988................ 33 U.S.C. Secs. 1412a, ......................................
1414a to 1414c.
Oil Pollution Act of 1990.................... 33 U.S.C. Secs. 2701 to ......................................
2761.
Organotin Antifouling Paint Control Act of 33 U.S.C. Secs. 2401 to ......................................
1988. 2410.
[[Page 1658]]
Outer Continental Shelf Lands Act............ 43 U.S.C. Secs. 1331 to ......................................
1356.
Outer Continental Shelf Lands Act Amendments 43 U.S.C. Secs. 1344 to ......................................
of 1978. 1356, 1801 to 1866; 30
U.S.C. Sec. 237.
Pollution Prevention Act of 1990............. 42 U.S.C. Secs. 13101 to 30-00-20N; Ch. 30-70
13109.
Pollution Prosecution Act of 1990............ 42 U.S.C. Sec. 4321 note ......................................
Powerplant and Industrial Fuel Use Act of 42 U.S.C. Secs. 8301 to ......................................
1978. 8483.
Refuse Act of 1899........................... 33 U.S.C. Sec. 407...... ......................................
Renewable Resources Extension Act of 1978.... 16 U.S.C. Secs. 1671 to ......................................
1676.
Residential Lead-Based Paint Hazard Reduction 42 U.S.C. Secs. 4851 to ......................................
Act of 1992. 4856.
Resource Conservation and Recovery Act of 42 U.S.C. Secs. 6901 to 30-00-20O
1976 [Solid Waste Disposal Act]. 6991i.
Rivers and Harbors Appropriation Acts 33 U.S.C. Secs. 401 to
(Selected sections). 426p and 441 to 454.
Safe Drinking Water Act...................... 42 U.S.C. Secs. 300F to 30-00-20P; Ch. 30-40
300j-26.
Shore Protection Act of 1988................. 33 U.S.C. Secs. 2601 to ......................................
2609, 2621 to 2623.
Soil and Water Resources Conservation Act of 16 U.S.C. Secs. 2001 to ......................................
1977. 2009.
Surface Mining Control and Reclamation Act of 30 U.S.C. Secs. 1201 to
1977. 1328.
Toxic Substances Control Act................. 15 U.S.C. Secs. 2601 to 30-00-20Q
2692.
United States Public Vessel Medical Waste 33 U.S.C. Secs. 2501 to ......................................
Antidumping Act of 1988. 2504.
Uranium Mill Tailings Radiation Control Act 42 U.S.C. Secs. 7901 to ......................................
of 1978. 7942.
Water Resources Research Act of 1984......... 42 U.S.C. Secs. 10301 to ......................................
10309.
Wild and Scenic Rivers Act................... 16 U.S.C. Secs. 1271 to 30-00-20R; Ch. 30-40
1287.
Wild Bird Conservation Act of 1992........... 16 U.S.C. Secs. 4901 to ......................................
4916.
Wild Free-Roaming Horses and Burros Act...... 16 U.S.C. Secs. 1331 to ......................................
1340.
Wilderness Act............................... 16 U.S.C. Secs. 1131 to ......................................
1136.
Wood Residue Utilization Act of 1980......... 16 U.S.C. Secs. 1681 to ......................................
1687.
Executive Order 13007, Indian Sacred Sites... 61 FR 26771 (1996)....... ......................................
Executive Order 12902, Energy Efficiency and 59 FR 11463 (1994)....... ......................................
Water Conservation at Federal Facilities.
Executive Order 12898, Federal Actions To 59 FR 7629 (1994)........ 30-00-20S
Address Environmental Justice in Minority
Populations and Low-Income Populations.
Executive Order 13101, Greening the 63 FR 49644 (1998)....... 30-00-20N; Ch. 30-90
Government Through Waste Prevention,
Recycling, and Federal Acquisition.
Executive Order 12866, Regulatory Planning 58 FR 51735 (1993)....... ......................................
and Review.
Executive Order 12856, Federal Compliance 58 FR 41981 (1993)....... 30-00-20E; Ch. 30-80
With Right-to-Know Law and Pollution
Prevention Requirements.
Executive Order 12852, President's Council on 58 FR 35841 (1993), as ......................................
Sustainable Development. amended by E.O. 12855,
58 FR 39107 (1993); 42
U.S.C. Sec. 4321 note.
Executive Order 12845, Requiring Agencies To 58 FR 21887 (1993)....... ......................................
Purchase Energy-Efficient Computer Equipment.
Executive Order 12844, Federal Use of 58 FR 21885 (1993)....... ......................................
Alternative Fueled Vehicles.
Executive Order 12843, Procurement 58 FR 21881 (1993)....... ......................................
Requirements and Policies for Agencies for
Ozone-Depleting Substances.
Executive Order 12778, Civil Justice Reform.. 56 FR 55195 (1991); 28 ......................................
U.S.C. Sec. 519 note.
Executive Order 12777, Implementation of 56 FR 54757 (1991); 33 ......................................
Section 311 of the Federal Water Pollution U.S.C. Sec. 1321 note.
Control Act of October 18, 1972, As Amended,
and the Oil Pollution Act of 1990.
Executive Order 12761, Establishment of 56 FR 23645 (1991); 42 ......................................
President's Environment and Conservation U.S.C. Sec. 4321 note.
Challenge Awards.
Executive Order 12759, Federal Energy 56 FR 16256 (1991); 42 ......................................
Management. U.S.C. Sec. 6201 note.
Executive Order 12630, Governmental Actions 53 FR 8859 (1988); 5 ......................................
and Interference With Constitutionally U.S.C. Sec. 601 note.
Protected Property Rights.
Executive Order 12612, Federalism 54 FR 41685 (1987); 5 ......................................
Considerations in Policy Formulation and U.S.C. Sec. 601 note.
Implementation.
Executive Order 12580, Superfund 52 FR 2923 (1987), as 30-00-20D
Implementation. amended by E.O. 12777,
56 FR 54757 (1991); 42
U.S.C. Secs. 9615 note.
Executvie Order 12114, Environmental Affects 44 FR 1957 (1979); 42 30-00-20M; Ch. 30-50
Abroad of Major Federal Actions. U.S.C. Sec. 4321 note.
Executive Order 12088, Federal Compliance 43 FR 47707 (1978), as 30-00-20T
With Pollution Control Standards. amended by E.O. 12580,
52 FR 2923 (1987); 42
U.S.C. Sec. 4321 note.
Executive Order 11990, Protection of Wetlands 42 FR 26961 (1977), as 30-00-20L; Ch. 30-40
amended by E.O. 12608,
52 FR 34617 (1987); 42
U.S.C. Sec. 4321 note.
Executive Order 11988, Floodplain Management. 42 FR 26951 (1977), as 30-00-20L; Ch. 30-40
amended by E.O. 12148,
44 FR 43239 (1979); 42
U.S.C. Sec. 4321 note.
[[Page 1659]]
Executive Order 11987, Exotic Organisms...... 42 FR 26949 (1977); 42 30-00-20L
U.S.C. Sec. 4321 note.
Executive Order 11912, Delegation of 41 FR 15825 (1976), as ......................................
Authorities Relating to Energy Policy and amended by E.O. 12003,
Conservation. 42 FR 37523 (1977), E.O.
12038, 43 FR 4957
(1978), E.O. 12148, 44
FR 43239 (1979), E.O.
12375, 47 FR 34105
(1982); 42 U.S.C. Sec.
6201 note.
Executive Order 11738, Administration of the 38 FR 25161 (1973); 42
Clean Air Act and the Federal Water U.S.C. Sec. 7606 note.
Pollution Control Act with Respect to
Federal Contracts, Grants or Loans.
Executive Order 11644, Use of Off-Road 37 FR 2877 (1972), as
Vehicles on Public Lands. amended by E.O. 11989,
42 FR 26959 (1977), E.O.
12608, 52 FR 34617
(1987); 42 U.S.C. Sec.
4321 note.
Executive Order 11593, Protection and 36 FR 8921 (1971); 16 30-00-20J
Enhancement of the Cultural Environment. U.S.C. Sec. 470 note.
Executive Order 11514, Protection and 35 FR 4247 (1970), as 30-00-20L
Enhancement of Environmental Quality. amended by E.O. 11991,
42 FR 26967 (1977); 42
U.S.C. Sec. 4321 note.
----------------------------------------------------------------------------------------------------------------
A. Clean Air Act (CAA). The CAA of 1970, 42 U.S.C. Secs. 7401-
7671q, as amended, establishes five major programs that cover (1) The
attainment and maintenance of air quality standards; (2) reduction of
hazardous air pollutants; (3) development of emission standards for
motor vehicles and fuels; (4) protection of the stratospheric ozone;
and (5) reduction of acid rain deposition.
1. National Ambient Air Quality Standards Program (NAAQS). All new
and existing sources of air pollution are subject to ambient air
quality regulation. The Clean Air Act directs the Environmental
Protection Agency (EPA) Administrator to identify pollutants which
``may reasonably be anticipated to endanger public health and welfare''
and to issue air quality criteria for them. EPA is also required to
publish primary and secondary NAAQS for the identified pollutants.
Primary NAAQS are designed to protect public health with an adequate
margin of safety, and secondary NAAQS are designed to protect the
public welfare. In 40 CFR Part 50, EPA has promulgated NAAQS for six
pollutants: sulfur dioxide (SO2), particulate matter,
nitrogen dioxide (NO2), carbon monoxide, ozone, and lead.
Each State is given primary responsibility for assuring that air
quality within its borders is maintained at a level consistent with the
NAAQS. The NAAQs's are implemented through source-specific emission
limitations established by States in State Implementation Plans (SIPs).
SIPs must meet minimum criteria set forth in the Clean Air Act and are
reviewed by EPA. A SIP may be enforced by the State or EPA. EPA must
promulgate a Federal Implementation Plan (FIP) if a State fails to make
a required submission or if a SIP submission is disapproved and the
State does not remedy the deficiency within a specified period.
(a) Nonattainment Areas. SIPs must adopt, at a minimum, reasonably
available control technology (RACT) for existing sources and provide
for annual incremental reductions in emissions of nonattainment
pollutants. The CAA also contains additional requirements for SIPs in
areas that do not attain the NAAQS, including specific requirements for
certain pollutants.
(b) New Source Performance Standards (NSPS). New sources of
pollution are subject to more stringent control technology and
permitting requirements than existing sources. EPA is authorized to
establish new source performance standards, which impose Federal
technology-based requirements on emissions from new or modified major
stationary sources of pollution. The Clean Air Act directs EPA to
establish standards for new sources that reflect the degree of emission
limitation achievable through the application of the best system of
emission reduction which the EPA Administrator determines has been
adequately demonstrated to be the best. These standards may be
promulgated as design, equipment, work practice, or operational
standards where numerical emission limitations are not feasible. EPA
has developed NSPS standards for a number of industry categories which
are published at 40 CFR part 60. Each NSPS identifies the types of
facilities to which the standards apply.
(c) Prevention of Significant Deterioration Program (PSD). A permit
must be obtained under the PSD program before a ``major'' new source
may be constructed or ``major modification'' made to an existing major
source in an area that attains the NAAQS or is designed unclassifiable.
The CAA requires each SIP to ``contain emission limitations and such
other measures as may be necessary * * * to prevent significant
deterioration of air quality'' in each region of the state in which the
air quality exceeds national standards. EPA's PSD regulations are
codified at 40 CFR part 51.
(d) Nonattainment Program. Regions that have failed to meet the
NAAQS for one or more criteria pollutants are designated as
``nonattainment'' areas. New or modified major stationary sources
proposed for nonattainment areas are required to comply with stringent
permitting requirements, including a showing that the decrease in
emissions from existing sources in the area is sufficient to offset the
increase in emissions from the new or modified source and achievement
of the ``lowest achievable emission rate'' (LAER).
2. National Emission Standards for Hazardous Air Pollutants
(NESHAP). The 1970 Clean Air Act authorized EPA to establish health-
based national emission standards for hazardous air pollutants (NESHAP)
to protect the public from these pollutants. EPA has established
standards for seven hazardous substances. EPA's NESHAP regulations are
published at 40 CFR part 61. The 1990 CAA amendments directed EPA to
establish technology-based standards for 189 hazardous substances
[[Page 1660]]
based on the use of ``maximum achievable control technology'' (MACT).
3. Emission Standards for Mobile Sources and Fuel-Related Programs.
EPA is authorized to establish allowable levels of auto emissions and
to control fuels and fuel additives. The 1990 CAA amendments establish
lower emission standards for automobiles and other vehicles and provide
for the use of ``clean'' alternative fuels and ``clean fuel'' vehicles.
4. Stratospheric Ozone Protection. Title VI of the Act, added in
1990, addresses scientific concerns related to stratospheric ozone
depletion and global warming by providing for the phase-out of ozone-
depleting substances. Title VI calls for the phase-out of most ozone-
depleting substances by the year 2000 and the imposition of other
controls designed to minimize the emissions of such substances prior to
their elimination.
5. Acidic Deposition. The 1990 CAA amendments added Title IV of the
Act which authorizes EPA to establish an acid rain program to reduce
the adverse effects of acidic deposition. The program imposes sulphur
dioxide (SO2) and nitrogen oxide (NOX) controls
on existing and new electric utility plants.
6. Permits. The 1990 CAA amendments added Title V which establishes
an operating permit program for existing stationary sources. The permit
program is modeled on the Clean Water Act permit program (NPDES
program--see 30-00-20B). Each State must develop and implement a Clean
Air Act operating permit program. EPA is required to issue permit
program regulations that are to be followed by the States in
establishing their programs; approve each State's permit program; and
establish a Federal permit program if a State fails to implement an
approved program. EPA is also authorized to review each permit issued
by a State. EPA regulations addressing the minimum requirements for
State operating permit programs are contained in 40 CFR part 70.
7. Civil and Criminal Penalties. EPA is authorized to seek
compliance with the Act's provisions through administrative, civil, and
criminal enforcement sanctions. The maximum penalties that may be
imposed for violation of the CAA are contained in Table 2.
----------------------------------------------------------------------------------------------------------------
Violation Administrative penalty Civil penalty Criminal penalty
----------------------------------------------------------------------------------------------------------------
Violation of CAA requirement......... $25,000 per day $25,000 per violation.. Up to $250,000 per day
(maximum $200,000 may and/or up to 5 yrs.
be waived by EPA and imprisonment.
DOJ jointly). Corporations subject to
Alternative: recovery $500,000 per
of projected economic violation.
value of noncompliance. Penalty doubled after
first offense.
``Field citation'' for minor $5,000 per day
violations.
False statement or failure to file or ....................... ....................... Up to $250,000 and/or
maintain records or reports. up to 2 yrs.
imprisonment; $500,000
for corporation.
Penalty doubled after
first offense.
Knowing failure to pay fee........... ....................... ....................... Up to $250,000 and/or
up to 1 yr.
imprisonment; $1
million per day for
corporations. Penalty
doubled after first
offense.
Knowing release of HAP or ``extremely ....................... ....................... Up to $25,000 per day
hazardous substance'' placing and/or up to 15 yrs.
another in ``imminent danger of imprisonment; $1
death or serious bodily injury''. million per day for
corporations. Penalty
doubled after first
offense.
Negligent release of air toxic ....................... ....................... Up to $100,000 and/or
placing another in ``imminent danger up to 1 yr.
of death or serious bodily injury''. imprisonment;
corporations subject
to $200,000. Penalty
doubled after first
offense.
----------------------------------------------------------------------------------------------------------------
B. Clean Water Act (CWA). The Clean Water Act, 33 U.S.C. 1251-1387,
was originally enacted as the Federal Water Pollution Control Act of
1972. The Act was substantially amended in 1977 and became the Clean
Water Act. The objective of the CWA is to ``restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
The Act establishes as a national policy ``that the discharge of toxic
pollutants in toxic amounts be prohibited.'' Among the goals
established by the Act are achievement of a level of water quality
which ``provides for the protection and propagation of fish, shellfish
and wildlife * * * [and] * * * for recreation in and on the water'' and
elimination of the discharge of pollutants into navigable waters.
1. Water Quality Standards. A water quality standard defines the
water quality goals of a water body by designating the uses to be made
of the water and by setting criteria necessary to protect the uses.
States are responsible for establishing water quality standards. The
standards are designed to protect public health or welfare, enhance the
quality of water, and serve the other purposes of the Clean Water Act.
States are required to review their water quality standards at least
once every three years. EPA reviews and approves or disapproves State-
adopted water quality standards in accordance with regulations codified
at 40 CFR part 131.
(a) Water Uses. Each State must specify appropriate water uses to
be achieved and protected. The classification of the waters of the
State, must take into consideration the use and value of waters for
public water supplies, protection and propagation of fish, shellfish
and wildlife, recreation in and on the water, agricultural, industrial,
and other purposes including navigation. In no case shall a State adopt
waste transport or waste assimilation as a designated use for any
waters of the United States.
(b) Water Quality Criteria. States must adopt those water quality
criteria that protect the designated uses. Criteria are elements of
State water quality standards, expressed as constituent concentrations,
levels, or narrative statements, representing a quality of water that
supports a particular use.
(c) Toxic Pollutants. The Water Quality Act of 1987 amended the CWA
[[Page 1661]]
to require States to identify those waters that are adversely affected
by toxic, conventional, and nonconventional pollutants; to identify
where additional controls are needed; and to prepare individual control
strategies. States must review water quality data and information on
discharges to identify specific water bodies where toxic pollutants may
be adversely affecting water quality or the attainment of the
designated water use, or where the levels of toxic pollutants are at a
level to warrant concern, and must adopt criteria for such toxic
pollutants applicable to the water body sufficient to protect the
designated use.
2. Effluent Limitations. The CWA directs EPA to issue effluent
limitation guidelines, pretreatment standards, and new source
performance standards for industrial discharges. The EPA implementing
regulations are based principally on the degree of effluent reduction
attainable through the application of control technologies. To ensure
that effluent guidelines remain current with the state of the industry
and with available control technologies, EPA is required to revise the
effluent guidelines at least annually if appropriate.
(a) Direct Dischargers. The effluent guidelines promulgated by EPA
reflect the several levels of regulatory stringency specified in the
Act, and they also focus on different types of pollutants.
(i) Best Practicable Control Technology (BPT). The CWA directs the
achievement of effluent limitations requiring applications of Best
Practicable Control Technology (BPT). In general, effluent limitations
that are based on Best Practicable Control Technology (BPT) represent
the average of the best treatment performance for an industrial
category.
(ii) Conventional Pollutants--Best Conventional Pollutant Control
Practical Technology (BCT). For conventional pollutants listed in the
Act, the CWA directs the achievement of effluent limitations based on
the performance of best conventional pollutant control technology
(BCT).
(iii) Toxic Pollutants--Best Available Technology (BAT). For the
toxic pollutants listed in the CWA and for nonconventional pollutants,
the Act directs the achievement of effluent limitations requiring
application of Best Available Technology Economically Achievable (BAT).
Effluent limitations based on BAT are to represent at a minimum the
best control technology performance in the industrial category that is
technologically and economically achievable.
(iv) New Source Performance Standards (NSPS). In addition to
limitations for existing direct dischargers, EPA has established New
Source Performance Standards (NSPS) for new direct dischargers. NSPS
limitations must be as stringent, or more stringent, than BAT
limitations for existing sources within the industry category or
subcategory.
(v) National Pollutant Discharge Elimination (NPDES) Permit. The
limitations and standards for direct dischargers are implemented in
permits issued through the National Pollutant Discharge Elimination
System (NPDES).
(b) Indirect Dischargers
(I) Conventional Pollutants. In general, EPA does not develop
regulations to control conventional pollutants discharged by indirect
dischargers because the publicly-owned treatment works (POTWs)
receiving those wastes normally provide adequate treatment of these
types of pollutants or they can be adequately controlled through local
pretreatment limits.
(ii) Pretreatment Standards. Indirect dischargers are regulated by
the general pretreatment regulations (40 CFR Part 403), local discharge
limits developed pursuant to Part 403, and categorical pretreatment
standards for new and existing sources covering specific industrial
categories. These categorical standards apply to the discharge of
pollutants from non-domestic sources which interfere with or pass
through POTWs, and are enforced by POTWs or by State or Federal
authorities. The categorical pretreatment standards for existing
sources covering specific industries are generally analogous to the BAT
limitations imposed on direct dischargers. The standards for new
sources are generally analogous to NSPS.
3. National Pollutant Discharge Elimination System (NPDES) Permit.
(a) Requirement. The CWA states that a permit is required for the
discharge of pollutants from a point source into waters of the United
States. Under the NPDES, permits are required whenever a pollutant is:
(1) discharged (2) by a person (3) from a point source (4) into
navigable waters of the United States.
(b) Waters of the United States. The Clean Water Act applies to
``navigable water'', which are in turn defined as ``waters of the
United States, including the territorial seas.'' (33 U.S.C. 1362(7)).
Navigable waters are broadly defined and are not limited to
``navigability in fact''. Waters of the United States include
interstate waters and wetlands; all other waters such as intrastate
lakes, rivers, streams (including intermittent steams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce; all impoundments of
waters; tributaries; the territorial seas; and wetlands adjacent to
other waters of the United States. (33 CFR 328.3(a)).
(c) Storm Water Discharges. Section 402(p) of the CWA clarifies
that storm water discharges associated with industrial activity,
including construction activity, to waters of the United States must be
authorized by a NPDES permit. The CWA requires EPA to issue regulations
establishing general permit standards for industrial storm water
dischargers. Facility operators have to file notices of intent to be
covered by the general permit and are required to develop pollution
prevention plans to keep contaminants out of storm water. The general
permits also establish special requirements for facilities that are
subject to the Emergency Planning and Community Right-To-Know Act
(EPCRA) section 313 reporting (see Chapters 30-60 and 30-80). The
regulations are codified at 40 CFR 122.26.
(d) Recordkeeping and Monitoring. The NPDES permits require holders
to keep updated records and to install and maintain monitoring
equipment, to take samples of effluents, and to report their findings
to the EPA. The results must be in the form of a discharge monitoring
report, which is a uniform method devised by the EPA for the self-
monitoring of permitted facilities.
4. Spills of Oil and Hazardous Substances. Under section 311,
spills of listed hazardous substances in ``Reportable Quantities''
established by regulation must be reported to the National Response
Center and promptly cleaned up. See 40 CFR parts 116-117 for
designations of hazardous substances and reportable quantities. Spill
Prevention Control and Countermeasure (SPCC) Plans must be adopted so
as to prevent discharge of oil from onshore and offshore facilities
into the navigable waters or adjoining shores. Requirements are set
forth at 40 CFR part 112.
5. Civil and Criminal Penalties. Administrative, civil, or criminal
penalties may be imposed by EPA or a federal court for violation of the
Act.
C. Coastal Zone and Management Act (CZMA). The Coastal Zone
Management Act, 16 U.S.C. 1451 to 1464, requires that Federal
activities in coastal areas be consistent with approved State Coastal
Zone Management Programs, to the maximum extent possible. Procedures
for consistency determinations under the CZMA requirements are codified
at
[[Page 1662]]
15 CFR part 930 and are described in Chapter 30-40.
D. Comprehensive Environmental, Response, Compensation and
Liability Act (CERCLA). The Comprehensive Environmental, Response,
Compensation and Liability Act (``CERCLA''), 42 U.S.C. 9601 to 9675, is
popularly known as the ``Superfund'' Act. The statute provides for a
fund to address the problems of ``cleaning up'' abandoned or leaking
hazardous waste sites. The 1980 statute was substantially revised in
1986 by the Superfund Amendments and Reauthorization Act of 1986
(SARA). It is implemented for federal agencies by Executive Order
12580.
CERCLA authorizes the Environmental Protection Agency (EPA) to:
Utilize the Hazardous Substance Superfund (``Superfund'')
to study and clean up sites that are listed on the National Priorities
List (NPL);
To recover costs expended from parties responsible; and,
To order such parties to perform work.
1. Hazardous Substance Superfund. The Hazardous Substance Superfund
is established through the imposition of taxes on certain industries
and from general tax revenues. The Superfund is used to pay EPA's
clean-up and enforcement costs, natural resource damage, and claims of
private parties. Federal agencies are not eligible for funds from the
Superfund.
2. National Contingency Plan (NCP). The National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) provides the organizational
structure and procedures for preparing for and responding to discharges
of oil and releases of hazardous substances, pollutants, and
contaminants. The NCP is required by CERCLA section 105 and section
311(c)(2) of the CWA. In Executive Order 12580, 52 FR 2923 (1987), the
President delegated to EPA the responsibility for the amendment of the
NCP.
National Priorities List (NPL). CERCLA requires that the NCP
include a list of national priorities among the known releases or
threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States. The National Priorities List
(NPL) constitutes this list. The identification of a site for the NPL
is intended primarily to guide the Environmental Protection Agency
(EPA) in determining which sites warrant further investigation to
assess the nature and extent of public health and environmental risks
associated with the site and to determine what CERCLA-financed remedial
action(s), if any, may be appropriate. Pursuant to section 105(a)(8)(B)
of CERCLA, as amended by SARA, EPA has promulgated a list of national
priorities among the known or threatened releases of hazardous
substances, pollutants, or contaminants throughout the United States.
That list which is Appendix B of 40 CFR part 300, is the National
Priorities List (``NPL'').
The NPL includes two sections, one of sites that are evaluated and
cleaned up by EPA (the ``General Superfund Section''), and one of sites
being addressed by other Federal agencies (the ``Federal Facilities
Section'').
Federal Facilities. Under Executive Order 12580 (52 FR 2923,
January 29, 1987) and CERCLA section 120, each Federal agency is
responsible for carrying out most response actions at facilities under
its own jurisdiction, custody, or control, although EPA is responsible
for preparing a Hazard Ranking System (HRS) score and determining
whether the facility is placed on the NPL. The HRS is a screening tool
used by the EPA to evaluate risks associated with abandoned or
uncontrolled or hazardous waste sites. EPA is not the lead agency at
these sites, and its role at such sites is accordingly less extensive
than at other sites. The Federal Facilities Section includes those
facilities at which EPA is not the lead agency.
3. Response and Remediation. Sections 106 and 107 provide the
primary authority for EPA, States, and private parties to recover the
costs of cleanup or to abate an endangerment to public health, welfare,
or the environment. Section 106 authorizes EPA to seek judicial relief
requiring a responsible party to abate an imminent and substantial
endangerment to the public health or welfare or the environment because
of an actual or threatened release of a hazardous substance from a
facility. Section 107 imposes liability for cleanup and other response
costs [costs incurred in responding to a release or a threatened
release of a hazardous substance] upon (1) a ``responsible party'' for
the (2) release or ``threatened release'' of (3) a hazardous substance
from (4) a facility or vessel.
(a) Potentially Responsible Party. Section 107(a) of CERCLA, 42
U.S.C. 9607(a), sets forth four categories of parties that are
potentially subject to liability:
(1) Current owner or operator: owner or operator of a facility from
which there is a release of a hazardous substance, or is the operator
or owner when cleanup is performed or litigation initiated;
(2) fomer owner or operator: a person who operated or owned a
facility when the hazardous substance was disposed of at the facility;
(3) arranger: any person who ``arranged for disposal or treatment''
at a facility; and
(4) transporter: a person who accepted hazardous substances for
transport to a disposal or treatment facility or site that was selected
by the transporter ``from which there is a release or threatened
release.'' (107(a)(4)).
Note: A current owner or operator may be liable even if it did
not handle, dispose of, or treat hazardous wastes at the facility,
and without regard to whether hazardous substances were disposed of
at the facility during the period of ownership or operation.
(b) Release or ``Substantial Threat of Release.'' The term
``release'' is defined broadly in the Act. A ``release'' includes ``any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environment * * *'' The release of any quantity of a hazardous
substance qualifies as a release under CERCLA. Certain types of
releases are excluded from the definition: engine exhaust, nuclear
material and fertilizer application. 42 U.S.C. 9601(22).
(c) Hazardous Substance. ``Hazardous substances'' are defined in
CERCLA section 101(14). A list of these substances can be found at 40
CFR part 302. The definition of ``hazardous substances'' incorporates
lists of hazardous pollutants that have been developed under other
Federal environmental statues and wastes that exhibit characteristics
of a hazardous waste under the Resource Conservation and Recovery Act
(``RCRA''). Table 3, following, outlines hazardous pollutants
considered to be hazardous substances under CERCLA.
------------------------------------------------------------------------
Type of pollutant Statutory definition
------------------------------------------------------------------------
Hazardous Air Pollutants.................. CAA, Section 112
Hazardous Substances...................... CWA, Section 311
Toxic Pollutants.......................... CWA, Section 307
Substances which ``may present substantial CERCLA, Section 102
danger to public health or welfare or the
environment''.
Listed Hazardous Wastes; Characteristic RCRA, Section 3001
hazardous wastes.
[[Page 1663]]
Imminently Hazardous Chemical Substances TSCA, Section 7
or Mixtures.
------------------------------------------------------------------------
(1) Petroleum Exclusion. Petroleum, ``including crude oil or any
fraction thereof,'' is excluded from the definition of ``hazardous
substance.''
(2) Pollutants or Contaminants. EPA may clean up a site polluted by
either a ``hazardous substance'' or a ``pollutant or contaminant,'' but
CERCLA does not authorize EPA to recover its cleanup costs from private
parties or to issue an order directing the parties to perform a cleanup
when the substance involved is only a ``pollutant or contaminant.''
(d) Response Costs. CERCLA permits the recovery of ``response
costs'', which includes the costs of removal, remedial action, and
enforcement activities related thereto. In addition to liability for
costs and damages related to response actions stemming from a release
of a hazardous substance, liability may also be imposed for costs
associated with the loss of a contaminated area's natural resources.
(e) Application of Liability. The statute does not set forth
liability standards. The courts have consistently applied the following
standards.
(1) Strict liability;
(2) Joint and Several Liability; and
(3) Retroactive Liability.
(f) Defense to Liability. The statute permits liability to be
defended when the release was caused by:
(1) an act of God;
(2) an act of war; or
(3) the act or omission of a third party other than an employee or
agent or one in a contractual relationship with the party being sought
to be held liable.
4. Penalties. A party that refuses or fails to comply with a
Section 106 order from EPA may be assessed up to $25,000 per day of the
violation of the order. Additional penalties may also be imposed.
5. Executive Order 12580. Executive Order 12580, Superfund
Implementation, 52 FR 2923 (1987), as amended by Executive Order 12777,
56 FR 54757 (1991), 42 U.S.C. 9615 note, implements CERCLA by
delegating functions under the Act vested in the President to Federal
agencies.
E. Emergency Planning and Community Right-To-Know (EPCRA)
1. EPCRA. The Emergency Planning and Community Right-To-Know Act of
1986 (EPCRA), 42 U.S.C. 11001-11050, establishes a mechanism for
providing the public with important information on the hazardous and
toxic chemicals in their communities, and it creates emergency planning
and notification requirements to protect the public in the event of a
release of extremely hazardous substances. The Act requires owners and
operators of certain facilities to annually submit toxic chemical
release inventories to EPA, affected States, and Indian tribes. EPCRA
requirements are set forth in chapter 30-60. Because it was enacted as
Title III of the Superfund Amendments and Reauthorization Act of 1986
(SARA), the statue is sometimes referred to as ``SARA, Title III''.
2. Executive Order 12856. Executive Order 12856, Federal Compliance
With Right-to-Know Law and Pollution Prevention Requirements, 58 FR
41981 (1993), applies the requirements of EPCRA to Federal agencies.
The requirements of the Order are described in chapter 30-80.
F. Endangered Species Act (ESA). The Endangered Species Act, 16
U.S.C. 1531-1543, directs Federal agencies to conserve endangered and
threatened species and their critical habitats. Federal agencies must
insure, in consultation with the Secretary of the Interior or the
Secretary of Commerce, that any action authorized, funded, or carried
out by the agency is not likely to jeopardize the continued existence
of any endangered species or threatened species, or result in the
destruction or adverse modification of critical habitat unless the
agency has been granted an exemption under ESA. Environmental review
requirements under ESA are covered in chapter 30-40.
G. Energy Conservation
1. Energy Policy Act. The Energy Policy Act of 1992, 42 U.S.C.
13201 to 13556, requires the Secretary of Energy to work with other
Federal agencies to significantly reduce the use of energy and reduce
the related environmental impacts by promoting use of energy efficient
and renewable energy technologies.
2. Energy Policy and Conservation Act. The Energy Policy and
Conservation Act, 42 U.S.C. 6201-6422, authorizes the Secretary of
Energy to promote energy efficiency and encourage conservation.
3. Executive Order 12902. Executive Order 12902, Energy Efficiency
and Water Conservation at Federal Facilities, 59 FR 11463 (1994),
requires each federal agency to develop and implement a program with
the intent of reducing energy consumption by 30 percent by the year
2005. Each agency must develop and implement a program for its
industrial facilities with the intent of increasing energy efficiency
by at least 20 percent by the year 2005 and shall implement all cost-
effective water conservation projects.
The Order directs each agency responsible for managing Federal
facilities to develop and begin implementing a 10-year plan to conduct
or obtain comprehensive facility audits, based on prioritization
surveys on each of the facilities the agency manages. All agencies are
to develop and implement programs to reduce the use of petroleum in
their buildings and facilities by switching to a less-polluting and
nonpetroleum-based energy source, such as natural gas or solar and
other renewable energy sources. The head of each agency shall report
annually to the Secretary of Energy and OMB in achieving the goals of
this order. Each agency head shall designate a senior official, at the
Assistant Secretary level or above, to be responsible for achieving the
requirements of Executive Order 12902. The agency senior official must
coordinate implementation of the Order with the Federal Environmental
Executive and Agency Environmental Executives established under
Executive Order No. 12873 (see chapter 30-90).
H. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
136 to 136y, requires the registration of a pesticide before it may be
sold and authorizes the EPA Administrator to limit the distribution,
sale or use of unregistered pesticides. EPA is prohibited from
registering a pesticide that will clause ``unreasonable adverse effects
on the environment.'' Regulations implementing FIFRA govern the use,
storage, and disposal of registered pesticides. Additionally, these
regulations govern the requirements for training and certification of
applicators, container labeling, and worker protection.
1. Fish and Wildlife Coordination Act. The Fish and Wildlife
Coordination Act, 16 U.S.C. 661-666c, requires Federal agencies to
protect fish and wildlife resources which may be affected by an agency
plan to control or modify a natural stream or body of water for any
purpose. The agency also must provide for the development and
improvement of wildlife resources that will be affected by its action.
Before taking action, the agency must consult with the United States
Fish and Wildlife Service, Department of the Interior, and with the
head of the State agency exercising administration over the wildlife
resources that will be affected to determine means and measures that
should be adopted to prevent the loss of or damage to such wildlife
resources, as well as to provide concurrently for the
[[Page 1664]]
development and improvement of such resources. Consultation
requirements under the Fish and Wildlife Coordination Act are described
in chapter 30-40.
J. Historic Preservation
1. Antiquities Act of 1906. The Antiquities Act of 1906, 16 U.S.C.
431-433, authorizes the President to declare historic landmarks,
historic and pre-historic structures, and other objects of historic and
scientific interest that are located on Federal lands to be national
monuments.
2. Archeological and Historic Preservation Act of 1974. The
Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 to
469c-1, directs Federal agencies to preserve significant scientific,
prehistorical, historical and archaeological data.
3. Historic Sites Act of 1935. The Historic Sites Act of 1935, 16
U.S.C. 461 to 467, states that it is a national policy to preserve for
public use historic sites, buildings, and objects of national
significance for the inspiration and benefit of the public. The Act is
also popularly called ``The Historic Sites, Buildings, and Antiquities
Act.''
4. National Historic Preservation Act. The National Historic
Preservation Act, 16 U.S.C. 470 to 470x-6, directs heads of Federal
agencies to assume responsibility for the preservation of historic
properties which are owned or controlled by such agencies.
5. Executive Order 11593. Executive Order 11593, Protection and
Enhancement of the Cultural Environment, 36 FR 8921 (1971), 16 U.S.C.
470 note, requires Federal agencies to initiate measures and procedures
to provide for the maintenance, through preservation, rehabilitation,
or restoration of Federally-owned sites that are listed on the National
Register of Historic Places.
K. Marine Protection, Research and Sanctuaries Act. The Marine
Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 to
1445a, 33 U.S.C. 1401 to 1445, provides for establishment of marine
sanctuaries and directs Federal agencies to ensure that their actions
are consistent with the intended use of such areas.
L. National Environmental Policy (NEPA).
1. NEPA. The National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321-4306d, establishes a comprehensive policy for protection
and enhancement of the environment by the Federal government; creates
the Council on Environmental Quality; and directs Federal agencies to
carry out the policies and procedures of the act. NEPA is covered in
chapter 30-50.
2. Executive Order 12114. Executive Order 12114, Environmental
Effects Abroad of Major Federal Actions, 44 FR 1957 (1979), enables
responsible officials of Federal agencies having ultimate
responsibility for authorizing and approving certain Federal activities
significantly affecting the environment of the global commons, or a
foreign nation, or certain major Federal actions outside the United
States which significantly affect natural or ecological resources of
global importance, to be informed of pertinent environmental
considerations and to take such considerations into account in making
decisions regarding such actions. Executive Order 12114 is implemented
for HHS in chapter 30-50.
3. Executive Order 11990. Executive Order 11990, Protection of
Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52
FR 34617 (1987) 42 U.S.C. 4321 note, directs Federal agencies to avoid,
to the extent possible, the long and short term adverse impacts
associated with the destruction or modification of wetlands and direct
or indirect support of new construction in wetlands wherever there is a
practical alternative. Executive Order 11990 is covered in chapter 30-
40.
4. Executive Order 11988. Executive Order 11988, Floodplain
Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44
FR 43239 (1979), 42 U.S.C. 4321 note, directs Federal agencies to take
action to avoid, to the extent possible, the long and short term
adverse impacts associated with the occupancy and modification of
floodplains and to avoid direct or indirect support of floodplain
development whenever there is a practical alternative. Executive Order
11988 is implemented for HHS in chapter 30-40.
5. Executiver Order 11514. Executive Order 11514, Protection and
Enhancement of Environmental Quality, 35 FR 4247 (1970), as amended by
Executive Order 11991, 42 FR 26967 (1977), 42 U.S.C. note, requires
Federal agencies to initiate measures needed to direct their policies,
plans, and programs to meet national environmental goals. Federal
agencies must develop procedures to ensure the fullest practicable
provision of timely public information and understanding of Federal
plans and programs with environmental impact in order to obtain the
views of interested parties. In carrying out their responsibilities
under NEPA and Executive Order 11514, Federal agencies are to comply
with regulations issued by the Council on Environmental Quality, except
where compliance would be inconsistent with statutory requirements.
M. Occupational Safety and Health Act (OSHA). The Occupational
Safety and Health Act of 1970, 29 U.S.C. 651 to 658, regulates the use,
storage, and handling of hazardous materials in the workplace and
provides for the Department of Labor to establish standards governing
workplace safety and health requirements.
N. Pollution Prevention and Recycling
1. Pollution Prevention Act (PPA). The Pollution Prevention Act of
1990, 42 U.S.C. 13101-13109, requires the reporting of efforts to
reduce toxic chemical releases through source reduction and recycling.
The PPA establishes national policy that pollution is to be prevented
or reduced at the source, and the Act requires the Environmental
Protection Agency (EPA) to submit biennial reports to Congress that
analyze the source reduction and recycling date submitted to it and
provide other pollution prevention information that has been gathered
from private businesses and Federal agencies. The Act also requires the
Administrator of EPA to develop a strategy to promote source reduction;
to make matching grants to States to promote the use of source
reduction techniques by businesses; and to establish a Source Reduction
Clearinghouse. The requirements of the PPA are described in more detail
in chapter 30-70.
2. Executiver Order 13101. Executive Order 13101, Greening the
Government Through Waste Prevention, Recycling, and Federal
Acquisition, Sep 1998, requires Federal agencies to strive to increase
the procurement of productions that are environmentally preferable or
that are made wit recovered materials and to set annual goals to
maximize the number of recycled products purchased, relative to non-
recycled alternatives. Each agency is to establish goals for solid
waste prevention and for recycling to be achieved by the years 2000,
2005 and 2010 and to annually report progress in attaining the goals.
Executive Order 13101 is implemented for HHS in chapter 30-90.
O. Resource Conservation and Recovery Act (RCRA) The Resource
Conservation ad Recovery Act of 1976, 42 U.S.C. 6901 to 6991i, governs
the generation, storage, and disposal of hazardous waste, and amends
the Solid Waste Disposal Act.
P. Safe Drinking Water Act (SDWA). The Safe Drinking Water Act, 42
U.S.C. 300f to 33j-26, is intended to protect drinking water sources.
The statute
[[Page 1665]]
authorizes EPA to determine if an action which will have an
environmental effect on a sole or principal drinking water source would
also constitute a significant hazard to a human population and, if so,
to prohibit such an action.
Q. Toxic Substances Control Act (TSCA). The Toxic Substances
Control Act of 1976 (TSCA), 15 U.S.C. 2601 to 2692, provides controls
over the manufacture process, use, distribution and disposal of certain
toxic materials e.g., polychlorinated biphenyls, lead-based paint,
asbestos containing materials and radon.
R. Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act, 16
U.S.C. 1271 to 1287, directs Federal agencies to consider and preserve
the values of wild and scenic areas in the use and development of water
and land resources.
S. Executive Orders
1. Executive Order 12898. Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629 (1994), requires each Federal agency to make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations. Each
Federal agency must develop an agency-wide environmental justice
strategy that identifies and addresses disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations.
The environmental justice strategy must list programs, policies,
planning and public participation processes, enforcement, and/or
rulemakings related to human health or the environment that should be
revised to, at a minimum: (a) promote enforcement of all health and
environmental statutes in areas with minority populations and low-
income populations; (b) ensure greater public participation; (c)
improve research and data collection relating to the health of and
environment of minority populations and low-income populations; and (b)
identify differential patterns of consumption of natural resources
among minority populations and low-income populations. In addition, the
environmental justice strategy must include, where appropriate, a
timetable for undertaking identified revisions and consideration of
economic and social implications of the revisions.
2. Executive Order 12088. Executive Order 12088, Federal Compliance
with Pollution Control Standards, 43 FR 47707 (1978), as amended by
Executive Order 12580, 52 FR 2923 (1987), 42 U.S.C. 4321 note, makes
the head of each Federal agency responsible for ensuring that all
necessary actions are taken for the prevention, control, and abatement
of environmental pollution with respect to Federal facilities and
activities under the control of the agency.
3. Executive Order 11987. Executive Order 11987, Exotic Organisms,
42 FR 26949, 42 U.S.C. 4321 note, directs Federal agencies, to the
extent permitted by law, to restrict the introduction of exotic species
into the natural ecosystems on lands and waters which they own, lease,
or administer.
30-00-30 Definitions
The following terms are defined solely for the purpose of
implementing the supplemental procedures provided by this chapter and
are not necessarily applicable to any statutory or regulatory
requirements. To the extent that a definition of one of these terms
should conflict with a definition in an applicable statute, regulation
or Executive Order, that statute, regulation or Executive Order
definition shall supersede the GAM definition.
A. Action--a signed decision by a responsible Department official
resulting in:
1. Approval, award, modification, cancellation, termination, use or
commitment of Federal funds or property by means of a grant, contract,
purchase, loan, guarantee, deed, lease, license or by any other means;
2. Approval, amendment or revocation of any official policy,
procedures or regulations including the establishment or elimination of
a Department program; or
3. Submission to Congress of proposed legislation which, if
enacted, the Department would administer.
B. Asset--an entity, group of entities or specific environment as
defined in the individual related acts and which the individual related
acts seek to protect or preserve. Assets include cultural assets (e.g.,
historic properties) and natural assets (e.g., wild and scenic rivers,
and endangered species).
C. Environmental Acts--all authorities listed in Section 30-00-20
or authorities that might be designated under other statutes or
Executive Orders.
D. Environmental Assessment--a concise public document, as defined
in the regulations implementing NEPA, that serves to provide sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement of a finding of no significant impact.
E. Environmental Effects--effects, as defined under NEPA, include
direct effects, which are caused by the action and occur at the same
time and place and indirect effects, which are caused by the action and
are later in time or farther removed in distance, but are still
reasonably foreseeable.
F. Environmental Impact Statement--a detailed written statement, as
required under NEPA, on: (i) the environmental impact of the proposed
action, ii) any adverse environmental effects which cannot be avoided
if the action is implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity and (v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented.
G. Environmental Review--the process, including necessary
documentation, which a Departmental organization uses to determine
whether a proposed action will cause an environmental effect.
H. Finding of No Significant Impact--a document by a federal
agency, as required under NEPA, briefly presenting the reasons why an
action will not have a significant effect on the human environment and
for which an environmental impact statement therefore will not be
prepared.
I. Major Federal Action--includes actions, as defined by NEPA, with
effects that may be major and which are potentially subject to federal
control and responsibility.
J. OPDIV--HHS Operating Division. The following is a current
listing (which may change at some future date) of OPDIVs:
Administration on Aging (AoA), Administration for Children and Families
(ACF), Agency for Health Care Policy and Research (AHCPR), Centers for
Disease Control and Agency for Toxic Substances and Disease Registry
(CDC/ATSDR), Food and Drug Administration (FDA), Health Care Financing
Administration (HCFA), Health Resources and Services Administration
(HRSA), Indian Health Service (IHS), National Institutes of Health
(NIH), Office of the Secretary (OS), Program Support Center (PSC), and
Substance Abuse and Mental Health Services Administration (SAMHSA),
K. STAFFDIV--HHS Staff Division. The following is a current listing
(which
[[Page 1666]]
may change at some future date) of STAFFDIVs: Office of the Assistant
Secretary for Legislation (ASL), Office of the Assistant Secretary for
Management and Budget (ASMB), Office of the Assistant Secretary for
Planning and Evaluation (ASPE), Office of the Assistant Secretary for
Public Affairs (ASPA), Departmental Appeals Board (DAB), Office for
Civil Rights (OCR), Office of General Counsel (OGC), Office of
Inspector General (OIG), and Office of Public Health and Sciences
(OPHS).
L. Program Review--a review by OPDIVs/STAFFDIVs of all their
actions to determine:
1. Those categories of actions which normally do not individually
or cumulatively cause significant environmental effects and therefore
may be categorically excluded from further environmental review; and
2. Those categories of actions which require an environmental
review because they may cause significant environmental effects under
NEPA; and
3. Those categories of actions which require an environmental
review because they normally do cause significant environmental effects
under NEPA.
HHS Chapter 30-10--General Administration Manual; HHS Transmittal
98.2
Subject: Department of Health and Human Services Environmental Policy
30-10-00.... Policy Statement
10.... Vision Statement
20.... Goal and Objectives
30.... Strategy
30-10-00 Policy Statement
The Department of Health and Human Services is committed to
complying with all applicable Federal, state and local environmental
laws, statutes and regulations, protecting the environment, and
conserving our environmental resources by being proactive and cost
effective in our environmental stewardship. It is HHS policy that
pollution be prevented or reduced at the source. All HHS organizations
shall give first priority to avoiding or reducing the generation of
hazardous substances, pollutants, and contaminants at the source.
Pollution that cannot be prevented or recycled must be treated in an
environmentally safe manner to reduce volume, toxicity, and/or
mobility. Only as a last resort should disposal or other release into
the environment be employed, and such disposal or release must be
conducted in accordance with all applicable authorities and in an
environmentally safe manner. Managers and employees are expected to
execute their responsibilities in a way that is proactive and cost
effective in the protection and conservation of our environmental
resources and in a manner that complies with all applicable Federal,
state, and local environmental laws, statutes and regulations.
30-10-10 Vision Statement
All HHS managers and employees are guardians of the environment
when carrying out their responsibilities. Proactive efforts at all
organizational levels must be focused on managing environmental risks
to ensure that the environment is always protected and our
environmental resources are conserved.
OPDIVs/STAFFDIVs must give weight to preservation of the
environment and protection of historic or cultural assets in reaching
substantive program decisions. All HHS organizations shall assess
environmental costs and benefits as well as program goals and
objectives in determining a particular course of action. In conducting
this assessment, OPDIVs/STAFFDIVs should devote reasonable time,
effort, and resources to consideration of enviormental risks associated
with a program-related course of action.
30-10-20 Goal and Objectives
The goal of our environmental efforts is to prevent harm to the
environment, and enhance the quality of human health by conserving our
environmental resources.
This goal is satisfied by meeting the following objectives:
1. Compliance--To comply with all applicable Federal, State, and
local environmental laws, statutes and regulations;
2. Conservation--To protect and conserve our environmental
resources through pollution prevention, waste reduction and recycling;
3. Pollution Prevention--To protect and conserve our environmental
resources through source reduction in facility management and
acquisition, where practicable, as the primary means of achieving and
maintaining compliance with applicable Federal, State and local
environmental laws, statutes and regulations; and
4. Restoration--To restore, when possible, facilities, land, and
waters damaged through past practices.
30-10-30 Strategy
HHS has adopted and will adhere to a Code of Environmental
Management Principles (CEMP) to help achieve the goals of the HHS
environmental protection program. As part of the effort to implement
these principles throughout HHS, all OPDIVS/STAFFDIVS will integrate
the following principles into their environmental protection programs:
1. Management Commitment--Written top management commitment to
improve environmental performance by establishing policies which
emphasize pollution prevention and the need to ensure compliance with
environmental requirements.
2. Compliance Assurance and Pollution Prevention--Proactive
programs that aggressively identify and address potential compliance
problem areas and utilize pollution prevention approaches to correct
deficiencies and improve environmental performance.
3. Enabling Systems--Necessary systems to enable personnel to
perform their functions consistent with regulatory requirements, HHS
environmental policies, and the HHS overall mission.
4. Performance and Accountability--Measures to address employee
environmental performance and ensure full accountability of
environmental functions.
5. Measurement and Improvement--A program to assess progress toward
meeting organization environmental goals, and which uses the results of
that assessment to improve environmental performance.
HHS Chapter 30-20--General Administration Manual; HHS Transmittal
98.2
Subject: Administrative Requirements
30-20-00.... Background
10.... Responsibilities
20.... Approval Authority and Delegations of Authority
30.... Process for Establishing Categorical Exclusions
40.... Categories of Exclusion
50.... Environmental Review Procedures
30-20-00 Background
This chapter establishes an administrative framework in the
Department for environmentally-related activities. Specifically, this
chapter (1) describes the assignment of relative responsibilities in
the Department regarding environmental activities; (2) establishes
procedures for program reviews; and (3) establishes other on-going
administrative requirements.
30-20-10 Responsibilities
A. Office of the Secretary. The Secretary shall designate an
official as the Department Environmental Officer, who will be
responsible for:
1. Preparing Departmental guidelines and other policy documents for
issuance
[[Page 1667]]
by the Secretary or other appropriate Department official pertaining to
environmental protection and preservation of natural or cultural
assets;
2. Approving lead agency agreements having Department-wide
applicability;
3. Providing training to HHS program officials with respect to
carrying out the requirements of environmental statutes and Executive
Orders;
4. Maintaining liaison with the Council on Environmental Quality
(CEQ), Environmental Protection Agency (EPA), and other Federal
agencies charged with direct responsibility for administering
environmental statutes and Executive Orders;
5. Coordinating the review of environmental statements originating
from outside of HHS. This responsibility is delegated to the Centers
for Disease Control and Prevention, National Center for Environmental
Health (FR, Vol. 43 no. 164, Aug. 23, 1978); and
6. Reviewing and making recommendations to the Assistant Secretary
for Management and Budget with respect to determinations by OPDIVs/
STAFFDIVs that certain activities are categorically excluded from
environmental review.
B. OPDIVs/STAFFDIVs. Heads of OPDIVs/STAFFDIVs are responsible for
ensuring that organizational units under their authority comply with
all provisions of all applicable Federal, State, and local
environmental laws, statues, regulations and Executive Orders and with
the procedures of part 30. An OPDIV/STAFFDIV head may designate an
environmental officer, who may act in either a full-time capacity or in
addition to other duties, to assist in fulfilling these
responsibilities.
C. Regional Offices. Regional Directors are responsible for
complying with all provisions of all applicable Federal, State, and
local environmental laws, statutes, regulations and Executive Orders
and the policies in part 30 for those specific program responsibilities
delegated to them. In addition, the Regional Director shall:
1. Serve as principal HHS regional liaison official with other
Federal, State, and local agencies on matters pertaining to
environmental preservation or protecting environmental, cultural, or
natural assets;
2. Coordinate the timely review by regional program personnel of
environmental impact statements forwarded to HHS by other agencies; and
3. Periodically verify that their regional program staff are aware
of and are complying with the requirements of part 30.
30-20-20 Approval Authority and Delegations of Authority
A. Delegation of Authority. The OPDIV/STAFFDIV head and Regional
Director may redelegate all of their environmental responsibilities to
subordinate program managers except for the authority of an OPDIV/
STAFFDIV head to approve the designation of actions as categorically
excluded. OPDIV/STAFFDIV heads shall obtain concurrence from the
Assistant Secretary for Management and Budget with respect to
activities designated to be categorically excluded from environmental
reviews.
B. Excluded Material. The exclusion of material from environmental
impact statements on the basis of national security and trade secrets
requires approval by the HHS General Counsel. (See Section 30-30-40.)
C. Natural Assets. Proposed actions which will have an effect on
certain natural assets may require concurrence or approval from other
Federal agencies and/or entities prior to taking the action. (See
chapter 30-40.)
D. Floodplains/Wetlands. OPDIV/STAFFDIV heads shall sign
determinations pursuant to Executive Order 11988, Floodplain
Management, and Executive Order 11990, Protection of Wetlands, except:
1. The Secretary shall approve proposed actions requiring
environmental impact statements on projects affecting floodplains; and
2. The Secretary shall approve proposed actions requiring
environmental assessments or environmental impact statements for new
construction in wetlands.
30-20-30 Program Reviews
A. Actions Requiring Environmental Review. All HHS activities will
be evaluated to determine whether such activities are actions that
require environmental review.
In a program review, an OPDIV/STAFFDIV evaluates actions it will be
taking in order to determine the potential of these actions to cause an
environmental effect under an applicable environmental statute or
Executive Order. OPDIVs/STAFFDIVs should have already completed an
initial review. OPDIVs/STAFFDIVs may undertake additional program
reviews subsequently whenever they deem it appropriate.
As a result of program review, an OPDIV/STAFFDIV shall divide each
of its actions in one of three groups:
Group 1 (categorically excluded)--Those actions which do not
individually or cumulatively have a significant effect on the human
environment or affect a natural or cultural asset protected by an
environmental statute or Executive Order
Group 2--Those actions which require an environmental review
because they may cause a significant environmental effect under NEPA or
may affect a protected cultural or natural asset protected by an
environmental statute or Executive Order.
Group 3--Those actions which normally do cause a significant
environmental effect under NEPA or affect a cultural or natural asset
protected by an environmental statute or Executive Order.
In grouping each of its actions, OPDIVs/STAFFDIVs shall use the
exclusion categories described in Section 30-20-40. If an action falls
within one of these exclusion categories, then it may be included in
Group 1. Such actions do not require environmental reviews, except in
circumstances described in 30-20-40. If an action does not fall within
one of these exclusion categories, then an OPDIV/STAFFDIV must perform
an environmental review prior to taking the action. Chapters 30-30 and
30-50 describe the procedures for conducting an environmental review.
Each OPDIV/STAFFDIV shall maintain as part of its organizational
guidance documents lists of those actions which it has determined fall
under Groups 1, 2, and 3 or shall have regulations that address such
actions. These lists shall supplement other internal directives or
instructions relating to environment-related responsibilities.
B. Approval. A determination by an OPDIV/STAFFDIV that an action
falls within Group 1 (Categorically Excluded) is effective upon
approval by the OPDIV/STAFFDIV head or, as required, after the issuance
of a regulation. However, OPDIVs/STAFFDIVs must forward these
determinations to the Assistant Secretary for Management and Budget for
concurrence. Determination that an action falls within Group 1
(Categorically Excluded) is effective until rendered inapplicable
because of changes in the underlying program authority or regulation.
C. Publication of Additional Categorical Exclusions by OPDIVs/
STAFFDIVs. An OPDIV/STAFFDIV may establish additional categorical
exclusions that pertain to the actions of that OPDIV/STAFFDIV after
approval
[[Page 1668]]
by the Assistant Secretary for Management and Budget and publication
for public comment in the Federal Register, in accordance with the
procedures established by that OPDIV/STAFFDIV. All categorical
exclusions not covered by the general listing in Section 30-20-40(B)(2)
must be published in the Federal Register.
30-30-40 Categories of Exclusion
A. Application of Categorical Exclusions
1. Required Determinations. To find that a proposal is
categorically excluded, an OPDIV/STAFFDIV shall determine the
following:
(a) Falls Within Exclusion Category. The proposed action falls
within one of the four exclusion categories described in this section.
This determination may take place as the result of a program review of
an OPDIV's/STAFFDIV's actions, in which case the action is listed in
the OPDIV's/STAFFDIV's administrative issuance system as being
categorically excluded from further environmental reviews.
(b) Absence of Extraordinary Circumstances. There are no
extraordinary circumstances related to the proposal that may affect the
significance of the environmental effects of the proposal.
Extraordinary circumstances are unique situations presented by specific
proposals, such as scientific controversy about the environmental
effects of the proposal; uncertain effects or effects involving unique
or unknown risks; or unresolved conflicts concerning alternate uses of
available resources within the meaning of section 102(2)(E) of NEPA;
and where it is reasonable to anticipate a cumulatively significant
impact on the environment. See 40 CFR 1508.27 for examples.
2. All categorical exclusions in this Part may be applied by any
organizational element of HHS.
3. A class of actions includes activities foreseeably necessary to
proposals encompassed within the class of actions (such as associated
transportation activities and award of implementing grants and
contracts).
B. Categories of Actions Which May Be Excluded From Environmental
Review. Categories of actions which may be excluded from environmental
review include, but are not limited to the following:
1. Category No. 1--General Exclusions:
(a) When a law or regulation grants an exception, unless precluded
by an OPDIV/STAFFDIV regulation.
(b) When the courts have found that the action does not require
environmental review; and
(c) When an action implements actions outside the territorial
jurisdiction of the United States and such actions are excluded from
review by Executive Order 12114.
2. Category No. 2--Functional Exclusions:
(a) Routine administrative and management support, including legal
counsel, public affairs, program evaluation, monitoring and individual
personnel actions;
(b) Appellate reviews when HHS was the plaintiff in the lower court
decision (e.g., a case involving failure by a nursing home to comply
with fire and safety regulations);
(c) Data processing and systems analysis;
(d) Education and training grants and contracts (e.g., grants for
remedial training programs or teacher training) except projects
involving construction, renovation, or changes in land use;
(e) Grants for administrative overhead support (e.g., regional
health or income maintenance program administration);
(f) Grants for social services (e.g., support for Head Start,
senior citizen programs or drug treatment programs) except projects
involving construction, renovation, or changes in land use;
(g) Liaison functions (e.g., serving on task forces, ad hoc
committees or representing HHS interests in specific functional areas
in relationship with other governmental and non-governmental entities);
(h) Maintenance (e.g., undertaking repairs necessary to ensure the
functioning of an existing facility), except for properties on or
eligible for listing on the National Register of Historic Places;
(i) Statistics and information collection and dissemination (e.g.,
collection of health and demographic data and publication of
compilations and summaries);
(j) Technical assistance by HHS program personnel, e.g., providing
assistance in methods for reducing error rates in State public
assistance programs or in determining the cause of a disease outbreak);
and
(k) Adoption of regulations and guidelines pertaining to the above
activities (except technical assistance and those resulting in
population changes).
3. Category 3--Program Exclusions. These exclusions, when
applicable, result from a substantive review and determination by an
OPDIV/STAFFDIV that certain programs or certain activities within a
program will not normally (a) significantly affect the human
environment (as defined by NEPA) or (b) affect an asset (as defined in
an applicable environmental statute or Executive Order) regardless of
the location or magnitude of the action. For example, an OPDIV/
STAFFDIV, following its review, might determine that the following are
unlikely to cause an environmental effect: assigning a member of the
Health Service Corps to a locality to supplemental existing medical
personnel or providing funds to support expansion of emergency medical
services in existing hospitals.
30-20-50 Environmental Review Procedures
An OPDIV/STAFFDIV must conduct environmental reviews with respect
to all proposed actions that are subject to an environmental statute or
Executive Order which do not fall under categorical exclusions 1, 2, or
3. Chapters 30-30 and 30-50 discuss the process for conducting an
environmental review with respect to a specific proposed action and for
fulfilling documentation and other requirements. Each OPDIV/STAFFDIV
shall ensure that its programs have appropriate procedures for
conducting environmental reviews, for completing required
documentation, and for ensuring public involvement and
intergovernmental consultation. These procedures must be in writing and
be included in the internal organizational guidance documents or
regulations. These procedures must, at a minimum, address the
following:
A. A list of those actions which the OPDIV/STAFFDIV has
categorically excluded from further environmental review requirements.
B. A list of those actions or circumstances when actions require an
environmental review prior to taking the action.
C. Designation of officials responsible for environment-related
activities including determinations as to whether to prepare an
environmental impact statement or an environmental assessment, if one
is required.
D. Procedures for preparing and circulating environmental
statements (including data required by the applicable environmental
statute or Executive Order for the type of action covered).
E. Procedures for ensuring the coordination of environmental review
with program decision-making, including concurrent development and
circulation of environmental documents with program documents and the
identification of key decision-making points.
[[Page 1669]]
F. Procedures for consulting with other Federal agencies
responsible for the environmental statutes or Executive Orders, if
necessary.
G. Procedures for developing lead agency agreements (as described
in 30-30-20B and 30-50).
H. A prohibition against precluding or prejudicing selection of
alternatives in an environmental impact statement without regard to
environmental risks.
I. Procedures for establishing a reviewable record, including
making environmental statements and related decision-making materials
part of the record of formal rule-making and adjudicatory proceedings.
J. Provisions for early consultation and assistance to potential
applicants and non-Federal entities in planning actions and developing
information necessary for later Federal involvement (as described in
30-30-20C and 30-50).
K. Descriptions of circumstances which preclude completion of
environmental reviews within reasonable time frames because of public
health and safety considerations and procedures for after-the-fact
completion.
L. Provision for ensuring that applications and other materials
from potential grantees or other recipients of Departmental funds, on a
program-by-program basis, include information necessary to conduct an
environmental review. Such information shall include the identification
of any properties which may be eligible for listing on the National
Register of Historic Places.
M. Provision for identifying cultural assets which a program
controls through leases or Federal ownership, and for nominating such
historic properties to the National Register of Historic Places.
HHS Chapter 30-30--General Administration Manual; HHS Transmittal
98.2
Subject: General Environmental Review Procedures
30-30-00.... Overview
10.... Summary Description
20.... Environmental Review
30.... Environmental Statements
40.... Intergovernmental Consultation and Document Review.
30-30-00 Overview
Certain environmental statutes and Executive orders require an
environmental review of proposed Federal actions to determine whether
such actions will have environmental effects.
The purpose of this chapter is to describe overall the steps which
Department officials must take in conducting environmental reviews of
specific proposed actions. Within these general steps, the individual
environmental acts differ significantly with respect to public
involvement, intergovernmental consultation, and documentation
required. The chapters at 30-40 and 30-50 following (entitled Natural
Asset Review and NEPA Review) discuss these specific requirements in
greater detail.
Note: The procedures and requirements in chapters 30-40 and 30-
50 take precedence over the general statements in this chapter and
must be consulted before determining the steps that must be taken
with regard to a specific action. The discussion in this chapter
generally does not apply to chapters 30-60 to 30-90.
30-30-10 Summary Description
The following is a summary description of the general types and
sequence of activities which Departmental officials should carry out in
reviewing specific proposed actions under this Part.
A. Determine that a proposed activity constitutes an action as
defined under Section 30-00-30 (Definitions) that is subject to an
environmental statute or Executive Order.
B. Determine whether the proposed action is categorically excluded
from all environmental review requirements. If it is excluded, no
further environmental review is necessary.
C. For proposed actions not categorically excluded, conduct an
environmental review in accordance with applicable program
environmental review procedures to determine whether the proposed
action will cause an environmental effect under one or more of the
environmental statutes or Executive Orders.
D. Determine whether it is necessary to prepare an environmental
document, e.g., an environmental assessment, and if necessary, an
environmental impact statement under NEPA. Circulate the environmental
document among the public, Federal, State and local agencies, and other
interested parties, as appropriate.
E. Carry out the requirements for public involvement and
intergovernmental consultation as required under the applicable
environmental statutes or Executive Orders, including any necessary
approvals.
F. Prepare the necessary environmental documentation and proceed
with the program decision-making process.
30-30-20 Environmental Review
A. General. OPDIVs/STAFFDIVs must perform an environmental review
for each proposed action not categorically excluded in accordance with
the OPDIV's/STAFFDIV's environmental procedures. The purpose of an
environmental review is to answer the following general questions:
(Individual environmental acts differ with respect to the specific
scope and methodology required in conducting an environmental review.)
1. Which environmental statutes or Executive Orders apply to the
proposed action?
2. Will a proposed action have an environmental effect under any of
the environmental statutes or Executive Orders, as defined in
regulation or by court interpretation?
3. Should the HHS OPDIV/STAFFDIV prepare an environmental
assessment or an environmental impact statement, given the
environmental statutes and Executive Orders involved and the kinds and
degree of environmental effects anticipated?
B. Agreements with Other Agencies. When two or more agencies are
engaged in the same action, a lead agency agreement provides one agency
with the authority to conduct the environmental review. These
agreements determine the content and type of statement and specify
which Federal agency will prepare it. The agreement includes a schedule
for the preparation and circulation of the document, as well as an
assignment of important tasks among the agencies involved. Lead agency
agreements may be signed with other agencies for individual actions or
for a particular type of action.
C. Non-Federal Agencies. Whenever an HHS program requests or
permits a non-Federal agency to perform an environmental review, the
program shall outline the type of information required, perform an
independent evaluation, and assume responsibility for the scope and
content of the material.
30-30-30 Environmental Documents
A. On the basis of the environmental review, OPDIVs/STAFFDIVs shall
determine what type of environmental document to prepare. Under NEPA,
either an environmental assessment and finding of no significant impact
or an environmental impact statement would generally be required.
Environmental impact statements are prepared in two stages: draft and
final. A final statement includes a consideration of comments submitted
by persons or organizations reviewing the draft statement. Under some
laws covered by this Part, an environmental assessment may also have to
be prepared in draft for review and comment before being finalized.
[[Page 1670]]
The chapters at 30-40 and 30-50 following (Natural Asset Review and
NEPA Review) discuss these different requirements in greater detail and
must be consulted to ascertain the specific requirements of NEPA and
each of the related statutes and Executive Orders.
B. Description
1. Environmental Impact Statements. An environmental impact
statement is a detailed written statement on (i) The environmental
impact of the proposed action, (ii) any adverse environmental effects
which cannot be avoided, (iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity and (v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented. Draft environmental impact statements shall not exhibit
biases in favor of the proposed action. A final statement may include a
recommendation with a rationale for a preferred action (see chapter 30-
50 for correct NEPA terminology and process).
2. Environmental Assessments. An environmental assessment is
generally a concise document which provides sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact. It shall include, in
detail, the environmental impact of reasonable alternatives. OPDIVs/
STAFFDIVs generally can use an environmental assessment in order to
satisfy any review, consultation, and public notice requirements of the
applicable environmental statutes and Executive Orders and to otherwise
inform individuals and organizations who may be interested in or
affected by the proposed action (see chapter 30-50 for correct NEPA
terminology and process).
C. Alternatives. Environmental impact statements must explore and
evaluate reasonable alternatives to the proposed action in terms of
their environmental consequences, benefits and costs, and contribution
to the underlying purpose or goal. Discussion of alternatives must be
sufficiently in-depth to permit a meaningful comparison of alternative
courses of action.
Environmental impact statements shall consider the following
categories of alternatives, as appropriate:
1. No Action by Any Organization. This alternative serves as a
baseline against which to measure the environmental consequences,
costs, and benefits of the proposed action and other alternatives.
2. Action Alternatives. One or more alternative courses of action
directed at achieving the underlying purpose or goal. The environmental
impact statement cannot automatically exclude actions.
Outside the expertise or jurisdiction of Departmental
organizations, e.g., examining the possible use of other real
properties other than that proposed for transfer by HHS; or
Which only partially achieve an underlying goal or
objective, e.g., funding a health care facility at a lower capacity for
patient care. However, action alternatives considered must be
reasonably available, practicable, and be related to the underlying
purpose or goal. An environmental impact statement must include all
reasonable alternatives.
3. Alternative Safeguards. These are alternative actions which
could mitigate the adverse environmental consequences of one or more of
the action alternatives.
4. Delayed Action Alternative. This alternative is to postpone or
delay a proposed action in order to conduct more research or for other
reasons.
5. Alternative Uses. When a proposed action would affect a scarce
or valuable resource (e.g., prime agricultural farmland), the potential
alternative uses of the resource must be identified so that they may be
compared with the value of the proposed action.
30-30-40 Intergovernmental Consultation and Document Review
OPDIVs/STAFFDIVs are responsible for meeting the various
requirements under environmental statutes and Executive Orders for
intergovernmental consultation and public involvement. These
requirements differ significantly. OPDIVs/STAFFDIVs must refer to the
more detailed descriptions in 30-40 and 30-50 and should consult an
environmental officer for guidance.
As required, OPDIVs/STAFFDIVs shall circulate draft environmental
impact statements for review and comment, and otherwise make then
available to the public upon request to the extent such statements are
not protected from disclosure by existing law applicable to the
agency's operation. Statements should be circulated to the Federal
agency responsible for administering the applicable environmental act,
involved non-Federal agencies at the State or local level, and
interested public persons or groups within the geographic area of the
environment affected. The review period is generally no less than 30
days for a draft environmental assessment and no less than 60 days for
a draft environmental impact statement. Whenever a draft environmental
impact statement is significantly revised because of comments received
or because the nature or scope of the proposed action changes
significantly, OPDIVs/STAFFDIVs shall prepare a new draft environmental
impact statement for circulation. Circulation of certain portions of
the document is not necessary when it involves the following:
A. National Security. Circulation of classified sections of
environmental documents is subject to regulations pertaining to matters
of national security.
B. Trade Secrets. Circulation of sections of environmental
documents that disclose a trade secret is subject to 18 U.S.C. 1905 or
21 U.S.C. 331(j) governing the protection and disclosure of trade
secrets.
HHS Chapter 30-40--General Administration Manual; HHS Transmittal
98.2
Subject: Natural Asset Review
30-40-00.... Applicability of Consultation Requirements
05.... Integration with NEPA Review Process
10.... Coastal Zone Management Act of 1972
20.... Endangered Species Act of 1973
30.... Fish and Wildlife Coordination Act
40.... Floodplain Management
50.... Marine Protection, Research, and Sanctuaries Act of 1972
60.... Safe Drinking Water Act (Sole Source Aquifers)
70.... Wetlands Protection
80.... Wild and Scenic Rivers Act
30-40-00 Applicability of Consultation Requirements
The environmental statutes and Executive Orders described in this
chapter require consideration of the effects of a proposed action on
specific types of places or species. Generally, they prohibit further
action until the Federal agency proposing to take action has consulted
with the Federal or State agency responsible for administering the law.
The species requiring consideration are listed by the Department of the
Interior. The places requiring consideration are:
A. Coastal Zones (as identified in a State coastal zone management
plan);
B. Habitats of Endangered Species (as identified by the Department
of the Interior);
C. Streams and other bodies of water;
[[Page 1671]]
D. Floodplains (as identified on HUD floodplain maps);
E. Marine Sanctuaries (as identified by the Secretary of Commerce);
F. Sole Source Aquifers (as identified by the Environmental
Protection Agency);
G. Wetlands (all); and
H. Wild and Scenic Rivers (as identified by the Departments of the
Interior and Agriculture).
Tables 1 indicates whether the administering agency has published
regulations implementing the consultation requirement. OPDIVs/STAFFDIVs
are responsible for consulting with the appropriate Federal or State
agency before taking action in accordance with the procedures in this
chapter and in the applicable statute, Executive Order, or implementing
regulation.
Table 1.--Agency Consultation Procedures
------------------------------------------------------------------------
Natural asset statute or Consultation
executive order Citation procedures
------------------------------------------------------------------------
Coastal Zone Management Act 16 U.S.C. Secs. 15 CFR Part 930.
of 1972. 1451-1464.
Endangered Species Act of 16 U.S.C. Secs. 50 CFR Part 402.
1973. 1531-1544.
Fish and Wildlife 16 U.S.C. Secs. 661- 16 U.S.C. Sec. 662.
Coordination Act. 666c.
Executive Order 11988, 42 FR 26951 (1977), Floodplain
Floodplain Management. as amended by E.O. Management
12148, 44 FR 43239 Guidelines, U.S.
(1979); 16 U.S.C. Water Resources
Sec. 4321 note. Council, 43 FR 6030
(1978).
Marine Protection, Research, 16 U.S.C. Secs. ....................
and Sanctuaries Act of 1972. 1431-1445a, 33
U.S.C. Secs. 1401-
1445..
Safe Drinking Water Act..... 42 U.S.C. Secs. 42 U.S.C. Sec. 300h-
300F-300J-26. 3, 40 CFR Part 149.
Executive Order 11990, 42 FR 26961 (1977), ....................
Protection of Wetlands. as amended by E.O.
12608, 52 FR 34617
(1987), 42 U.S.C.
Sec. 4321 note.
Wild and Scenic Rivers Act.. 16 U.S.C. Secs. 36 CFR Part 297.
1271-1287.
------------------------------------------------------------------------
30-40-05 Integration With NEPA Review Process
OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions
to determine whether they will affect places and species described in
this chapter. OPDIVs/STAFFDIVs are to evaluate the potential effects of
a proposed action in accordance with the procedures for National
Environmental Policy Act (NEPA) review in chapter 30-50. If an
environmental assessment (EA) or environmental impact statement (EIS)
is required to be prepared for the proposed action, the documentation
required by the applicable statute or Executive Order and the
administrating agency regulations are to be included in the EA or EIS.
In addition, the consultation procedures required by the environmental
statute or Executive Orders shall be followed.
30-40-10 Coastal Zone Management Act of 1972
A. Purpose. The Coastal Zone Management Act of 1972 (CZMA), 16
U.S.C 1451-1464, declares that it is the national policy ``to preserve,
protect, develop, and where possible, to restore or enhance, the
resources of the Nation's coastal zone...'' In furtherance of this
policy, the Act provides Federal assistance to State for developing and
implementing coastal zone management programs. Section 307(c)(1)(A) of
the CZMA (16 U.S.C. 1456(c)(1)(A)) provides that ``[e]ach Federal
agency activity within or outside the coastal zone that affects any
land or water use or natural resource of the coastal zone shall be
carried out in a manner which is consistent to the maximum extent
practicable with the enforceable policies of approved State management
programs.''
National Oceanic and Atmospheric Administration (NOAA) regulations
codified at 15 CFR Part 930, Subpart C--Consistency for Federal
Activities, implements section 307 of the CZMA. These ``consistency''
regulations are designed to assure that all Federally conducted or
supported activities, including development projects, directly
affecting the coastal zone are undertaken in a manner consistent to the
maximum extent practicable with approved State coastal management
programs.
B. Definitions
1. Federal activity. The term ``Federal activity'' means any
functions performed by or on behalf of a Federal agency in the exercise
of its statutory responsibilities. The term ``Federal activity'' does
not include the issuance of a Federal license or permit to an applicant
or person or the granting of Federal assistance to an applicant agency.
2. Federal development project. The term ``Federal development
project'' means a Federal activity involving the planning,
construction, modification, or removal of public works, facilities, or
other structures, and the acquisition, utilization, or disposal of land
or water resources.
3. Coastal Zone. The CZMA defines the term ``coastal zone'' as
``the coastal waters (including the lands therein and thereunder) and
the adjacent shorelands (including the waters therein and thereunder),
strongly influenced by each other and in proximity to the shorelines of
the several coastal states, and includes islands, transitional and
intertidal areas, salt marshes, wetlands, and beaches.'' Zone
boundaries are described in 16 U.S.C. 1453(1). The CZMA excludes from
the definition of coastal zone lands the use of which is by law subject
solely to the discretion of or which is held in trust by the Federal
Government, its officers, or agents (e.g., nonterminated California
Indian rancherias).
4. ``Consistent to the maximum extent practicable.'' The term
``consistent to the maximum extent practicable'' describes the
requirement for Federal activities, including development projects,
directly affecting the coastal zone of States with approved management
programs to be fully consistent with such programs unless compliance is
prohibited based upon the requirements of existing law applicable to
the Federal agency's operations.
C. Requirement. An OPDIV/STAFFDIV undertaking any development
project in the coastal zone of a State shall ensure that the project
is, to the maximum extent practicable, consistent with the enforceable
policies of approved State management programs.
OPDIVs/STAFFDIVs shall determine which of their activities directly
affect the coastal zone of States with approved management programs.
OPDIVs/STAFFDIVs shall consider all development projects within the
coastal
[[Page 1672]]
zone to be activities directly affecting the coastal zone. All other
types of activities within the coastal zone are subject to OPDIV/
STAFFDIV review to determine whether they directly affect the coastal
zone. Federal activities outside of the coastal zone are subject to
OPDIV/STAFFDIV review to determine whether they directly affect the
coastal zone.
D. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the
potential effects of a proposed action affecting a coastal zone in
accordance with the procedures for National Environmental Policy Act
(NEPA) review in Chapter 30-50. If an environmental assessment (EA) or
environmental impact statement (EIS) is required to be prepared for the
proposed action, a consistency determination, described in 30-40-10E,
shall be included in the EA or EIS.
E. Consistency Determination. OPDIVs/STAFFDIVs shall provide State
agencies with consistency determinations for all Federal activities
directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to
consult with State agencies during their efforts to assess whether an
action will be consistent to the maximum extent practicable with a
State management program.
A consistency determination should be prepared following
development of sufficient information to determine reasonably the
consistency of the activity with the State's management program, but
before the OPDIV/STAFFDIV reaches a significant point of decision-
making in its review process. An OPDIV/STAFFDIV shall provide a
consistency determination to the relevant State agency designated under
section 306(d)(6) of the CZMA (16 U.S.C. 1455(d)(6)) at the earliest
practicable time in the planning or reassessment of the activity, but
in no case later than 90 days before final approval of the Federal
activity, unless both the OPDIV/STAFFDIV and the State agency agree to
a different schedule.
OPDIVs/STAFFDIVs must ensure that their activities are consistent
to the maximum extent practicable with the enforceable, mandatory
policies of the management program. However, OPDIVs/STAFFDIVs need only
give adequate consideration to management program provisions which are
in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have
to evaluate coastal zone effects for which the management program does
not contain mandatory or recommended policies because, in the absence
of such provisions, there is no basis for making a consistency
determination with respect to such effects.
F. Negative Determination. If a OPDIV/STAFFDIV asserts that
compliance with the management program is prohibited, it must clearly
describe to the State agency the statutory provisions, legislative
history, or other legal authority which limits the OPDIV's/STAFFDIV's
discretion to comply with the provisions of the management program.
If a OPDIV/STAFFDIV decides that a consistency determination is not
required for a Federal activity (1) identified by a State agency on its
list or through case-by-case monitoring, (2) which is the same as or
similar to activities for which consistency determinations have been
prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a
thorough consistency assessment and developed initial findings on the
effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall
provide the State agency with a notification, at the earliest
practicable time in the planning of the activity, briefly setting forth
the reasons for its negative determination. A negative determination
shall be provided to the State agency at least 90 days before final
approval of the activity, unless both the OPDIV/STAFFDIV and the State
agency agree to an alternative notification schedule.
G. Content of a consistency determination. The consistency
determination shall include a brief statement indicating whether or not
the proposed activity will be undertaken in a manner consistent to the
maximum extent practicable with the management program. The statement
must be based upon an evaluation of the relevant provisions of the
management program. The consistency determination shall also include a
detailed description of the activity, its associated facilities, and
their coastal zone effects, and comprehensive data and information
sufficient to support the consistency statement. The amount of detail
in the statement evaluation, activity description, and supporting
information shall be commensurate with the expected effects of the
activity on the coastal zone.
If HHS standards are more restrictive than standards or
requirements contained in the State's management program, the State
should be informed in the consistency determination of the statutory,
regulatory, or other basis for the application of the stricter
standards.
If an OPDIV/STAFFDIV asserts that compliance with the management
program is prohibited, it must clearly describe to the State agency the
statutory provisions, legislative history, or other legal authority
which limits the OPDIV's/STAFFDIV's discretion to comply with the
provisions of the management program.
H. State Review Period. A state agency is required to inform the
OPDIV/STAFFDIV of its agreement or disagreement with the consistency
determination at the earliest practicable time. OPDIVs/STAFFDIVs may
presume State agency agreement if the State agency fails to provide a
response within 45 days from receipt of the consistency determination.
State agency agreements shall not be presumed in cases where the State
agency, within the 45 day period, requests an extension of time to
review the matter.
OPDIVs/STAFFDIVs shall approve one request for an extension period
of 15 days or less. In considering whether a longer or additional
extension period is appropriate, consideration should be given by the
OPDIV/STAFFDIV to the magnitude and complexity of the information
contained in the consistency determination.
1. Final Action. An OPDIV/STAFFDIV shall not undertake final
action sooner than 90 days from the issuance of the consistency or
negative determination to the State agency unless both the OPDIV/
STAFFDIV and the State agency agree to an alternative period.
J. Mediation by Secretary of Commerce. In the event of a serious
disagreement between an OPDIV/STAFFDIV and a State agency regarding a
determination related to whether a proposed activity directly affects
the coastal zone, either party may seek the Secretarial mediation
services provided for in Subpart G of 15 CFR Part 930.
K. Licenses, permits. OPDIVs/STAFFDIVs shall follow the procedures
in 15 CFR part 930 when the action involves an applicant for a
Departmental license or permit.
L. Excluded Actions. The requirements in this section shall not
apply to those types of actions which are specifically excluded by the
approved CZM plan.
30-40-20 Endangered Species Act of 1973
A. Purpose. The Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, directs Federal agencies, in consultation with either the
Secretary of the Interior or of Commerce, as appropriate, to carry out
conservation programs for endangered or threatened species of fish,
wildlife, or plants (``listed species'') and habitat of such species
that has been designated as critical (``critical habitat'').
[[Page 1673]]
Such affirmative conservation programs must comply with applicable
permit requirements for listed species and should be coordinated with
the appropriate Secretary.
Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every
Federal agency, in consultation with the assistance of the appropriate
Secretary, to ensure that any action it authorizes, funds, or carries
out, is not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of
critical habitat. The Act also requires Federal agencies to confer with
the Secretary of the Interior or of Commerce on any action that is
likely to jeopardize the continued existence of a proposed species or
result in the destruction or adverse modification of a proposed
critical habitat. The Act prohibits Federal agencies from making any
irreversible or irretrievable commitment of resources which has the
effect of foreclosing the formulation or implementation of reasonable
and prudent alternatives which would avoid jeopardizing the continued
existence of listed species or the destruction or adverse modification
of critical habitat. The U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) share responsibilities for
administering the Act.
B. Governing Regulations and Organization Responsible for
Consultation. Interagency consultation procedures under the Endangered
Species Act are codified at 50 CFR part 402. The Lists of Endangered
and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12.
The designated critical habitats are found in 50 CFR 17.95 and 17.96
and 50 CFR part 226. Endangered or threatened species under the
jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If
the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/
STAFFDIV shall contact the NMFS. For all other listed species, an
OPDIV/STAFFDIV shall contact the FWS.
C. Definitions. The regulations governing interagency cooperation
and consultation under the ESA in 50 CFR part 402 define many of the
terms and phrases that are used in the regulations and this section.
1. Biological Assessment. A biological assessment is a document,
prepared by or under the direction of a Federal agency, concerning
listed and proposed species and designated and proposed critical
habitat that may be present in the action area and the evaluation of
potential effects of the action on such species and habitat.
2. Biological Opinion. A biological opinion is the document that
states the Service's opinion as to whether or not a proposed Federal
agency action is likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of
critical habitat. The Service may issue one of two types of opinions:
(a) Jeopardy Biological Opinion. An opinion by the Service that the
proposed Federal agency action is likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of critical habitat is called a ``jeopardy biological
opinion''.
(b) No Jeopardy Biological Opinion. An opinion by the Service that
the proposed Federal agency action is not likely to jeopardize the
continued existence of a listed species or result in the destruction or
adverse modification of critical habitat is called a ``no jeopardy''
biological opinion.
3. Director. The term ``Director'' refers to, as appropriate, the:
(a) Assistant Administrator for Fisheries for the National Oceanic
and Atmospheric Administration or an authorized representative; or
(b) Fish and Wildlife Service Regional Director, or authorized
representative, for the region where the action would be carried out.
4. Listed Species. Listed species means any species of fish,
wildlife, or plant which has been determined to be endangered or
threatened under Section 4 of the Act. Listed species are found in 50
CFR 17.11-17.12.
5. Service. The term ``Service'' means the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service, as appropriate.
D. Integration with NEPA. The consultation, conference, and
biological assessment procedures required by section 7 of ESA that are
summarized in this section may be consolidated with interagency
cooperation procedures required by other statutes, such as the National
Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and
Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the
requirements of these other statutes, however, does not in itself
relieve an OPDIV/STAFFDIV of its obligations to comply with the
procedures set forth in 50 CFR part 402 or the substantive requirements
of section 7 of ESA. Where the consultation or conference has been
consolidated with the interagency cooperation procedures required by
other statutes such as NEPA or FWCA, the results should be included in
the documents required by those statutes.
E. Conference Regarding Proposed Species or Critical Habitat. An
OPDIV/STAFFDIV shall confer with the Director of the Service on any
action which is likely to jeopardize the continued existence of any
proposed species or result in the destruction or adverse modification
of proposed critical habitat. The conference is an informal process
that is designed to assist in identifying and resolving potential
conflicts at an early stage in the planning process and can result in
advisory recommendations from the Service regarding ways to minimize or
avoid adverse effects from the proposed action. If the proposed species
is subsequently listed or the proposed critical habitat is designated
prior to completion of an HHS action, the responsible OPDIV/STAFFDIV
shall review the action to determine whether formal consultation is
required. An OPDIV/STAFFDIV may request that a conference be conducted
in accordance with the formal consultation procedures in 50 CFR 402.14.
The conclusions reached during a conference and any recommendations
will be documented by the Service and provided to the OPDIV/STAFFDIV.
The results of the conference shall be included in the HHS
organization's appropriate documentation if the proposed action is
being reviewed in accordance with NEPA procedures in Chapter 30-50.
F. Biological Assessment.
1. Purpose. An OPDIV/STAFFDIV shall use the biological assessment
in determining whether a conference is required with the Service. If
the biological assessment indicates that the action is not likely to
jeopardize the continued existence of proposed species or result in the
destruction or adverse modification of proposed critical habitat, and
the Director concurs, then a conference is not required. The Director
may use the results of the biological assessment in (1) determining
whether to request the OPDIV/STAFFDIV to initiate a conference, (2)
formulating a biological opinion, or (3) formulating a preliminary
biological opinion.
2. Requirement. A biological assessment shall be prepared for all
major construction activities. The biological assessment shall be
completed before any contract for construction is entered into and
before construction is begun.
3. Request for information. The OPDIV/STAFFDIV shall convey to the
Director either (1) a written request for a list of any listed or
proposed species or designated or proposed critical habitat that may be
present in the action
[[Page 1674]]
area; or (2) a written notification of the species and critical habitat
that are being included in the biological assessment. Within 30 days of
receipt of the notification of, or the request for, a species list, the
Director shall either concur with or revise the list. If the Director
advises that no listed species or critical habitat may be present, a
biological assessment and further consultation is not required. If only
proposed species or proposed critical habitat may be present in the
action area, the OPDIV/STAFFDIV must confer with the Service if
required under 50 CFR 402.10, but preparation of a biological
assessment is not required unless the proposed listing and/or
designation becomes final.
4. Contents. The contents of a biological assessment are at the
discretion of the submitter and will depend on the nature of the
Federal action. The following may be considered for inclusion:
(a) The results of an on-site inspection of the area affected by
the action to determine if listed or proposed species are present or
occur seasonally;
(b) The views of recognized experts on the species at issue;
(c) A review of the literature and other information;
(d) An analysis of the effects of the action on the species and
habitat, including consideration of cumulative effects, and the results
of any related studies;
(e) An analysis of alternate actions considered by the Federal
agency for the proposed action.
5. Submission of Biological Assessment. The OPDIV/STAFFDIV shall
submit the completed biological assessment to the Director for review
within 180 days after its initiation. The Director will respond in
writing within 30 days as to whether or not the Director concurs with
the findings of the biological assessment. An OPDIV/STAFFDIV, at its
option, may request that formal consultation be initiated concurrently
with the submission of the assessment.
G. Formal Consultation Process for Listed Species and Critical
Habitat.
1. Consultation Requirement. An OPDIV/STAFFDIV shall review its
actions at the earliest possible time to determine whether any action
may affect listed species or critical habitat. If such a determination
is made, formal consultation is required, except as noted in this
subsection. An OPDIV/STAFFDIV need not initiate formal consultation if,
as a result of the preparation of a biological assessment under 50 CFR
402.12 or as a result of information consultation with the Service
under 50 CFR 402.13, the OPDIV/STAFFDIV determines, with the written
concurrence of the Director of the Service, that the proposed action is
not likely to adversely affect any listed species or critical habitat.
Formal consultation shall not be initiated by an OPDIV/STAFFDIV until
any required biological assessment has been completed and submitted to
the Director in accordance with 50 CFR 402.12.
2. Contents of Request. A written request to initiate formal
consultation shall be submitted to the Director of the Service and
shall include:
(a) A description of the action to be considered;
(b) A description of the specific area that may be affected by the
action;
(c) A description of any listed species or critical habitat that
may be affected by the action;
(d) A description of the manner in which the action may affect any
listed species or critical habitat and an analysis of any cumulative
effects;
(e) Relevant reports, including any environmental impact statement,
environmental assessment, or biological assessment prepared; and
(f) Any other relevant available information on the action, the
affected listed species, or critical habitat.
An OPDIV/STAFFDIV that requests formal consultation shall provide
the Service with the best scientific and commercial data available or
which can be obtained during the consultation for an adequate review of
the effects that an action may have upon listed species or critical
habitat.
H. Irreversible or Irretrievable Commitment of Resources. After
initiation or reinitiation of consultation required under ESA, an
OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment
of resources with respect to the proposed action which has the effect
of foreclosing the formulation or implementation of any reasonable and
prudent alternatives which would avoid violating ESA. This prohibition
remains in force during the consultation process and continues until
the requirements of section 7(a)(2) of ESA are satisfied.
Note: The prohibition in this subsection does not apply to the
conference requirement for proposed species or proposed critical
habitat under Section 7(a)(4) of the Act.
I. Duration and Extension of Formal Consultation. Formal
consultation concludes within 90 days after its initiation unless
extended in accordance with 50 CFR 402.14(e). If the Service does not
respond within 90 days, the Department may reach its own conclusion
with respect to whether the proposed action will jeopardize the
continued existence of a species or result in the destruction or
adverse modification of a critical habitat.
J. Issuance of Biological Opinion. The Service will provide a
biological opinion to the OPDIV/STAFFDIV at the end of the consultation
process as to whether the proposed action, taken together with
cumulative effects, would be likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of a critical habitat. A ``jeopardy'' biological opinion
by the Service will include reasonable and prudent alternatives, if
any, to the proposed agency action that can be taken by the OPDIV/
STAFFDIV to avoid violation of ESA. If the Service is unable to develop
such alternatives, it will indicate that to the best of its knowledge,
there are no reasonable and prudent alternatives. The Service may also
formulate discretionary conservation recommendations, if any, which
will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts
that its proposed action may have on listed species or critical
habitat.
The Service's ``no jeopardy'' or ``jeopardy'' biological opinion
shall be included in any documentation required under NEPA procedures
if the proposed action is being assessed in accordance with NEPA and
the procedures in Chapter 30-50.
K. Termination of Consultation Process. Formal consultation is
terminated with the issuance of the biological opinion or if, during
any stage of consultation, an OPDIV/STAFFDIV determines, with the
concurrence of the Director, that its proposed action is not likely to
adversely affect any listed species or critical habitat. If an OPDIV/
STAFFDIV determines that its proposed action is not likely to occur, it
may terminate the consultation process by written notice to the
Service.
L. Responsibilities After Issuance of Biological Opinion. Following
the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine
whether and in what manner to proceed with the action in light of its
ESA Section 7 obligations and the Service's biological opinion.
If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV
shall notify the Service of its final decision on the action. If the
OPDIV/STAFFDIV determines that it cannot comply with the requirements
of section 7(a)(2) of ESA after consultation with the Service, it may
apply for an exemption. Procedures for exemption applications by
Federal agencies and others are found in 50 CFR part 451. No action
[[Page 1675]]
shall occur unless or until the OPDIV/STAFFDIV has received approval
of the exemption.
M. Emergencies. The interagency cooperation regulation in 50 CFR
part 402 provides that where emergency circumstances mandate the need
to consult in an expedited manner, consultation may be conducted
informally through alternative procedures that the Director determines
to be consistent with the requirements of sections 7(a)-(d) of the Act.
This provision applies to situations involving acts of God, disasters,
casualties, national defense or security emergencies. An OPDIV/STAFFDIV
may request expedited consultation by submitting information on the
nature of the emergency action(s), the justification for the expedited
consultation, and the impacts to endangered or threatened species and
their habitats. Formal consultation is to be initiated as soon as
practicable after the emergency is under control.
N. Exemptions. ESA provides procedures for granting exemptions from
the requirements of section 7(a)(2). Regulations governing the
submission of exemption applications are found at 50 CFR part 451, and
regulations governing the exemption process are found at 50 CFR parts
450, 452, and 453.
O. Applicant Procedures. ESA and the implementing procedures in 50
CFR part 402 provide for participation in the conference and
consultation processes by any person (as defined in Section 3 (13) of
the Act) who requires formal approval or authorization from HHS as a
prerequisite to conducting the action.
30-40-30 Fish and Wildlife Coordination Act
A. Purpose. The Fish and Wildlife Coordination Act, 16 U.S.C. 661-
666c, provides for equal consideration of wildlife with other features
of water resource development programs with a view toward conservation
of wildlife resources. The Act requires Federal agencies involved in
actions that will result in the control or modification of any natural
stream or body of water, for any purpose, to take action to protect the
fish and wildlife resources which may be affected by the action and to
affirmatively provide development and improvement of the wildlife
resources in connection with the proposed action.
B. Responsibilities and Consultation Requirements.
1. An OPDIV/STAFFDIV shall consult, in accordance with 16 U.S.C.
662, with the United States Fish and Wildlife Service, Department of
the Interior, and with the head of the State agency exercising
administration over wildlife resources, before taking or approving an
action that would control or modify any natural stream or other body of
water for any purpose.
2. As part of the consultative process, OPDIVs/STAFFDIVs shall
submit to the United States Fish and Wildlife Service and the State
wildlife agency the appropriate environmental documentation, if needed
for the consultation, that describes the possible effects of the
proposed action on a natural stream or body of water.
3. An OPDIV/STAFFDIV shall determine, through the consultative
process, the means and measures necessary to conserve wildlife
resources by preventing loss of and damage to such resources, as well
as providing for the development and improvement of the wildlife
resources in connection with the proposed action.
4. OPDIVs/STAFFDIVs shall give full consideration to the report and
recommendations of the U.S. Fish and Wildlife Service and to any report
of the State agency on the wildlife aspects of a proposed action. Any
plans for the proposed action shall include such justifiable means and
measures for wildlife purposes as the OPDIV/STAFFDIV finds should be
adopted to obtain maximum overall project benefits. All reports and
recommendations of the U.S. Fish and Wildlife Service wildlife agencies
shall constitute an integral part of any environmental report prepared
pursuant to the action.
5. Reports and recommendations of the Secretary of Interior or
State wildlife agencies shall be incorporated into any environmental
documents that may be associated with the proposed action. 16 U.S.C.
662(b).
6. No further action shall take place pending receipt of a report
from the U.S. Fish and Wildlife Service and State wildlife agency.
30-40-40 Floodplains Management
A. Purpose. Executive Order 11988, Floodplain Management, 42 FR
26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979),
42 U.S.C. 4321 note, directs each Federal agency to avoid the long and
short term adverse impacts associated with the occupancy and
modification of floodplains, including the direct and indirect support
of floodplain development, whenever there is a practicable alternative.
Floodplains are those areas identified as such according to a Federal
Emergency Management Agency (FEMA) floodplain map. Guidance for
implementation of Executive Order 11988 is provided in the U.S. Water
Resources Council Floodplain Management Guidelines, 43 FR 6030. See
also FEMA's ``Further Advice on Executive Order 11988 Floodplain
Management'' (GPO 1987).
B. Definitions
1. Base Flood. ``Base Flood'' means that flood which has a one
percent of greater chance of occurrence in any given year.
2. Floodplain. ``Floodplain'' means the lowland and relatively flat
areas adjoining inland and coastal waters, including flood-prone areas
of offshore islands, including at a minimum, that area subject to a one
percent or greater chance of flooding in any given year.
3. Critical Action. ``Critical Action'' means any activity for
which even a slight chance of flooding is too great, e.g. elderly
housing proposals.
C. Responsibilities. Each OPDIV/STAFFDIV has the responsibility
under Executive Order 11988 to take action to reduce the risk of flood
loss, to minimize the impact of floods on human safety, health, and
welfare, and to restore and preserve the natural and beneficial values
served by floodplains in carrying out its responsibilities for:
1. Acquiring, managing, and disposing of Federal lands and
facilities;
2. Providing Federally undertaken, financed, or assisted
construction and improvements; and
3. Conducting Federal activities and programs affected land use,
including but not limited to, water and related land resources
planning, regulating, and licensing activities.
Each OPDIV/STAFFDIV shall evaluate the potential effects of any
actions it may take in a floodplain in accordance with the procedures
in this section. It must also ensure that its planning programs and
budget requests reflect consideration of flood hazards and floodplain
management.
D. Floodplain Determination. Before taking an action, each OPDIV/
STAFFDIV shall determine whether the proposed action will occur in a
floodplain. OPDIVs/STAFFDIVs shall utilize the Flood Insurance Rate
Maps (FIRMs) or the Flood Hazard Boundary Maps (FHBMs) prepared by the
Federal Insurance Administration of FEMA to determine if a proposed
action is located in a base or critical action floodplain. When a
proposed action would be located in an area of predominantly Federal or
State land holdings, and FIRM or FHBM maps are not available, OPDIVs/
STAFFDIVs shall obtain information from the land administering agency
(e.g., Bureau of Land Management or Soil Conservation Service) or from
agencies with floodplain analysis expertise.
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E. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the
potential effects of a proposed action in a floodplain in accordance
with the procedures for National Environmental Policy Act (NEPA) review
in Chapter 30-50. If an environmental assessment (EA) or environmental
impact statement (EIS) is required to be prepared for the proposed
action, a floodplain assessment, described in 30-40-40D, shall be
included in the EA or EIS.
F. Floodplain Assessment (Executive Order 11988).
1. Proposed Action. The floodplain assessment shall describe the
nature and purpose of the proposed action and the reasons for locating
the action in the floodplain.
2. Floodplain Map. A map of the affected floodplain indicating the
location of the proposed action shall be included in the assessment.
3. High Hazard Areas. High hazard areas in the floodplain shall be
delineated and the nature and extent of the proposed hazard shall be
discussed.
4. Floodplain Effects. The effects of the proposed action on the
floodplain shall be discussed in the assessment. The discussion shall
include an evaluation of the long- and short-term effects of the
proposed action on people, property, natural and beneficial floodplain
values, and any other relevant direct or indirect effects.
5. Alternatives and Mitigation Measures. The floodplain assessment
shall discuss alternatives to the proposed action that may avoid
adverse effects and incompatible development in the floodplain,
including the alternatives of no action or location at an alternate
site. The assessment shall also discuss measures that mitigate the
adverse effects of the proposed action.
6. Conformity to Applicable State or Local Standards. The
floodplain assessment shall include a statement indicating whether the
proposed action conforms to applicable State or local floodplain
protection standards.
7. Flood Insurance Program Standards. An action taken in a
floodplain must incorporate design features consistent with the
standards in the Flood Insurance Program of the Federal Insurance
Administration to minimize substantial harm to the floodplain.
G. Public Review. Circulation of draft environmental impact
statements shall include the public and other interested individuals,
including concerned Federal, non-Federal and private organizations.
Interested parties shall have a period of 60 days for review and
comment on draft environmental impact statements.
H. Secretarial Approval. No action shall take place without a
finding by the HHS Secretary that the only practicable alternative
consistent with the law and with the policy set forth in Executive
Order 11988 requires siting in a floodplain. The action proposed for
Secretarial approval shall be designed to minimize potential harm to or
within the floodplain. The Secretary shall approve proposed actions
requiring environmental impact statements on projects affecting
floodplains.
I. Notice of Finding.
1. Contents. After Secretarial approval and prior to taking action,
an OPDIV/STAFFDIV shall prepare and circulate a notice of finding
containing an explanation of why the action is proposed to be located
in a floodplain. The notice shall not exceed three pages and shall
include a location map. The notice shall include (a) the reasons why
the action is proposed to be located in a floodplain; (b) a statement
indicating whether the action conforms to applicable State or local
floodplain protection standards; and (c) a list of the alternatives
considered.
2. Public Review. For programs subject to Executive Order 12372,
the notice of finding shall be sent to the appropriate state and local
reviewing agencies the geographic areas affected. A public review
period of 30 days after the issuance of notice of finding shall be
allotted before any action is taken.
J. Licenses, permits, loans, or grants. Each OPDIV/STAFFDIV shall
take floodplain management into account when formulating or evaluating
any water and land use plans and shall require land and water resources
use appropriate to the degree of hazard involved. Adequate provision
shall be made for the evaluation and consideration of flood hazards in
the regulations and operating procedures for the licenses, permits,
loan, or grant-in-aid programs that an OPDIV/STAFFDIV administers.
OPDIVs/STAFFDIVs shall also encourage and provide appropriate guidance
to applicants to evaluate the effects of their proposal in floodplains
prior to submitting applications for Federal licenses, permits, loans,
or grants.
K. Authorization or Appropriation Requests. OPDIVs/STAFFDIVs shall
indicate in any requests for new authorizations or appropriations
whether the proposed action is in accord with Executive Order 11988 if
the proposed action will be located in a floodplain.
30-40-50 Marine Protection, Research, and Sanctuaries Act of 1972
A. Purpose. Title III of the Marine Protection, Research and
Sanctuaries Act prohibits Federal Departments from taking actions which
will affect a Marine Sanctuary unless the Secretary of Commerce
certifies that the activity is consistent with the purposes of the Act.
Listings of sanctuaries are designated by the Secretary of Commerce and
maps of sanctuaries appear in the Federal Register.
B. Responsibilities and Consultation Requirements.
1. If the proposed action will create an environmental effect on a
marine sanctuary, OPDIVs/STAFFDIVs shall prepare an appropriate
environmental document and forward it to the Secretary of Commerce.
2. No further action shall take place unless and until the
Secretary certifies that the action is consistent with the purposes of
the Act.
30-40-60 Safe Drinking Water Act (Sole Source Aquifers)
A. Requirement. Section 1424(e) of the Safe Drinking Water Act (42
U.S.C. 300h-3(e)), provides for the protection of those aquifers which
have been designated by the Administrator of the EPA as the sole or
principal source of drinking water for an area. No commitment for
Federal financial assistance (through a grant, contract, loan
guarantee, or otherwise) may be entered into for any project which the
Administrator determines may contaminate such aquifer through a
recharge zone so as to create a significant hazard to public health. A
commitment for Federal financial assistance may, if authorized under
another provision of law, be entered into to plan or design the project
to assure that it will not so contaminate the aquifer.
B. Responsibilities and Consultation Requirements.
1. OPDIVs/STAFFDIVs shall determine if a proposed action will
directly or indirectly affect a sole or principal source aquifer
designated by the Administrator of EPA in accordance with section
1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
2. If the action will affect a designated aquifer, OPDIVs/STAFFDIVs
shall send the appropriate environmental document to the EPA Regional
Administrator for a determination as to whether the proposed action may
potentially contaminate the aquifer through its recharge zone so as to
create a significant hazard to public health.
[[Page 1677]]
3. The action shall not proceed unless and until the Administrator
of the Environmental Protection Agency determines that the proposed
action will not contaminate the designated aquifer so as to create a
significant hazard to public health.
30-40-70 Wetlands Protection
A. Purpose. Executive Order 11990, Protection of Wetlands, 42 FR
26961 (1977), as amended by Executive Order 12608, 52 F 34617 (1987),
42 U.S.C. 4321 note, directs each Federal agency to minimize the
destruction, loss, or degradation of wetlands and to preserve and
enhance such wetlands in carrying out their program responsibilities.
Consideration must include a variety of factors, such as water supply,
erosion and flood prevention, maintenance of natural systems, and
potential scientific benefits.
B. Definitions
Wetlands. The term ``wetlands'' means those areas that are
inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation or aquatic life that requires
saturated or seasonally saturated soil conditions for growth and
reproduction. Wetlands generally include swamps, marshes, bogs, and
similar areas.
C. Wetlands Determination. OPDIVs/STAFFDIVs shall utilize
information available from the following sources when appropriate to
determine the applicability of the wetlands protection requirements of
this section:
1. U.S. Department of Agriculture Soil Conservation Service Local
Identification Maps;
2. U.S. Fish and Wildlife Service National Wetlands Inventory;
3. U.S. Geological Survey Topographic Maps;
4. State wetlands inventories; and
5. Regional or local government-sponsored wetland or land use
inventories.
D. Responsibilities. OPDIVs/STAFFDIVs are to evaluate the potential
effects of a proposed action in wetlands in accordance with the
procedures for National Environmental Policy Act (NEPA) review in
Chapter 30-50. If an environmental assessment (EA) or environmental
impact statement (EIS) is required to be prepared for the proposed
action, a wetlands assessment, described in 30-40-70E, shall be
included in the EA or EIS.
E. Wetlands Assessment (Executive Order 11990)
1. Proposed Action. The wetlands assessment shall describe the
nature and purpose of the proposed action and the reasons for locating
the action in the wetlands.
2. Wetlands Map. A map of the affected wetlands indicating the
location of the proposed action shall be included in the assessment.
3. Wetlands Effects. The effects of the proposed action on the
wetlands shall be discussed in the assessment. The discussion shall
include an evaluation of the long- and short-term effects of the
proposed action on the survival, quality, and natural and beneficial
values of the wetlands, and any other relevant direct or indirect
effects.
4. Alternatives and Mitigation Measures. The wetlands assessment
shall discuss alternatives to the proposed action that may avoid
adverse effects and incompatible development in the wetlands, including
the alternatives of no action or location at an alternate site. The
assessment shall also discuss measures that mitigate the adverse
effects of the proposed action. No further action shall take place
until the OPDIV/STAFFDIV makes a decision that the proposed action
includes all reasonable measures to minimize harm to the wetlands as a
result of the proposed action.
5. Conformity to Applicable State or Local Standards. The wetlands
assessment shall include a statement indicating whether the proposed
action conforms to applicable State or local wetlands protection
standards.
F. Public Review. Circulation of draft environmental impact
statements shall include the public and other interested individuals,
including concerned Federal, non-Federal and private organizations.
Interested parties shall have a period of 60 days for review and
comment on daft environmental impact statements.
G. Secretarial Review. No further action shall take place until the
Secretary of HHS determines that there is no practicable alternative to
construction in wetlands and that the proposed action includes all
practicable measures to minimize harm to the wetlands. The Secretary
shall approve proposed actions requiring environmental impact
statements for new construction in wetlands.
H. Licenses and Permits. These requirements do not apply to the
issuance to individuals of permits and licenses and the allocation of
funds made to individuals.
30-40-80 Wild and Scenic Rivers Act
A. Purpose. The purpose of the Act is to preserve selected free-
flowing rivers, along with their immediate environments, for the
benefit of immediate and future generations. These include river
components and potential components of the National Wild and Scenic
River System and study areas designated by the Secretaries of
Agriculture and Interior. (Environmental officers keep a list of these
rivers and related
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