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86.204 Incorporation by reference.
titled "Protection and Enhancement In addition to 40 CFR 1502.21, mate
of the Cultural Environment." These rial incorporated into an EIS by refer
provisions and regulations establish ence shall be organized to the extent
review procedures independent of possible into a Supplemental Informa
NEPA requirements. tion Document and be made available (a) Under section 106 of the National for review upon request. No material Historic Preservation Act and Execumay be incorporated by reference tive Order 11593, if an EPA undertakunless it is reasonably available for in ing affects any property with historic, spection by potentially interested per architectural, archeological or cultural sons within the period allowed for value that is listed on or eligible for comment.
listing on the National Register of His
toric Places, the responsible official 86.205 List of preparers.
shall comply with the procedures for When the EIS is prepared by con consultation and comment promulgattract, either under direct contract to ed by the Advisory Council on Historic EPA or through an applicant's or Preservation in 36 CFR Part 800. The grantee's contractor, the responsible responsible official must identify propofficial must independently evaluate erties affected by the undertaking the EIS prior to its approval and take that are potentially eligible for listing responsibility for its scope and con on the National Register and shall retents. The EPA officials who under quest a determination of eligibility take this evaluation shall also be de from the Keeper of the National Regscribed under the list of preparers. ister, Department of the Interior,
under the procedures in 36 CFR Part Subpart C-Coordination With Other 63. Environmental Review and Consul
(b) Under the Archaeological and tation Requirements
Historic Preservation Act, if an EPA
activity may cause irreparable loss or 8 6.300 General.
destruction of significant scientific, Various Federal laws and executive
prehistoric, historic or archeological orders address specific environmental
data, the responsible official or the concerns. The responsible official shall
Secretary of the Interior is authorized integrate to the greatest practicable
to undertake data recovery and preserextent the applicable procedures in
vation activities. Applicable procethis subpart during the implementa
dures are found in 36 CFR Parts 64 tion of the environmental review proc
and 66. ess under Subparts E through I. This
8 6.302 Wetlands, floodplains, agricultural subpart presents the central requirements of these laws and executive
lands, coastal zones, wild and scenic orders. It refers to the pertinent au
rivers, fish and wildlife and endanthority and regulations or guidance
gered species. that contain the procedures. These The following procedures shall apply laws and executive orders establish to EPA administrative actions in proreview procedures independent of grams to which the pertinent statute NEPA requirements. The responsible or executive order applies. official shall be familiar with any (a) Wetlands protection. Executive other EPA or appropriate agency pro Order 11990, Protection of Wetlands, cedures implementing these laws and requires Federal agencies conducting executive orders.
certain activities to avoid to the
extent possible, the adverse impacts 8 6.301 Historical and archeological sites.
associated with the destruction or loss EPA is subject to the requirements of wetlands and to avoid support of of the National Historic Preservation new construction in wetlands if a pracAct of 1966, as amended, 16 U.S.C. 470 ticable alternative exists. EPA's Stateet seq., the Archaeological and Historic ment of Procedures on Floodplain Preservation Act of 1974, 16 U.S.C. 469 Management and Wetlands Protection et seq., and Executive Order 11593, en. (dated January 5, 1979, incorporated
as Appendix A hereto) requires EPA maximum extent possible. If an EPA programs to determine if proposed ac- action may affect a coastal zone area, tions will be in or will affect wetlands. the responsible official shall assess the If so, the responsible official shall pre- impact of the action on the coastal pare a floodplains/wetlands assess- zone. If the action significantly affects ment, which will be part of the envi- the coastal zone area and the State ronmental assessment or environmen- has an approved coastal zone managetal impact statement. The responsible ment program, a consistency determiofficial shall either avoid adverse im nation shall be sought in accordance pacts or minimize them if no practica
with procedures promulgated by the ble alternative to the action exists.
Office of Coastal Zone Management in (b) Floodplain management. Execu- 15 CFR 930. tive Order 11988, Floodplain Manage
(e) Wild and scenic rivers. Under the ment, requires Federal agencies to
Wild and Scenic Rivers Act, 16 U.S.C. evaluate the potential effects of ac
1274 et seq., a Federal agency may not tions they may take in a floodplain to
assist, through grant, loan, license or avoid, to the extent possible, adverse
otherwise, the construction of a water effects associated with direct and indi
resources project that would have a rect development of a floodplain.
direct and adverse effect on the values EPA's Statement of Procedures on
for which such river was established, Floodplain Management and Wetlands
as determined by the Secretary Protection (dated January 5, 1979, incorporated as Appendix A hereto), re
charged with its administration. Nothquires EPA programs to determine
ing contained in the foregoing senwhether an action will be located in or
tence, however, shall preclude licenswill affect a floodplain. If so, the re
ing of, or assistance to, developments sponsible official shall prepare a flood
below or above a wild, scenic or recreplain/wetlands assessment. The as
ational river area or on any stream trisessment will become part of the envi.
butary thereto which will not invade ronmental assessment or environmen
the area or unreasonably diminish the tal impact statement. The responsible
scenic, recreational, and fish and wildofficial shall either avoid adverse im
life values present in the area on the pacts or minimize them if no practica
date of approval of the Wild and ble alternative exists.
Scenic Rivers Act. The responsible of. (c) Agricultural lands. It is EPA's
ficical shall determine whether there policy to consider the protection of are any designated rivers in the plan the Nation's environmentally signifi.
ning area. The responsible official cant agricultural lands from irrevers. shall not recommend authorization of ible conversion to uses which result in any water resources project that its loss as an environmental or essen would have a direct and adverse effect tial food production resource. Before on the values for which such river was undertaking an action, the responsible established, as determined by the Secofficial shall determine whether there retary charged with its administration, are significant agricultural lands in in request of appropriations to begin the planning area. If significant agri. construction of any such project, cultural lands are identified, direct whether heretofore or hereafter auand indirect effects of the undertaking thorized, without advising the Secreon the land shall be evaluated and ad. tary of Interior or the Secretary of Agverse effects avoided or mitigated, to riculture, as the case may be, in writthe extent possible, in accordance with ing of his intention at least sixty days EPA's Policy to Protect Environmen- in advance, and without specifically tally Significant Agricultural Lands reporting to the Congress in writing at (September 8, 1978).
the time he makes his recommenda(d) Coastal zone management. The tion or request in what respect conCoastal Zone Management Act, 16 struction of such project would be in U.S.C. 1451 et seq., requires that all conflict with the purposes of the Wild Federal activities in coastal areas be and Scenic Rivers Act and would consistent with approved State Coast affect the component and the values al Zone Management Programs, to the to be protected by him under the Act. Applicable consultation procedures are rect increases in emissions and the refound in section 7 of the Act.
sultant change in air quality. (f) Fish and wildlife protection. The (b) If the proposed action may have Fish and Wildlife Coordination Act, 16 a significant direct or indirect adverse U.S.C. 661 et seq., requires Federal effect on air quality, the responsible agencies involved in actions that will official shall consult with the approresult in the control or structural priate State and local agencies as to modification of any natural stream or the conformity of the proposed action body of water for any purpose, to take with the SIP. Such agencies shall inaction to protect the fish and wildlife clude the State agency with primary resources which may be affected by responsibility for the SIP, the agency the action. The responsible official designated under section 174 of the shall consult with the Fish and Wild- Clean Air Act and, where appropriate, life Service and the appropriate State the metropolitan planning organizaagency to ascertain the means and tion (MPO). This consultation should measures necessary to mitigate, pre- include a request for a recommendavent and compensate for project-relat- tion as to the conformity of the proed losses of wildlife resources and to posed action with the SIP. enhance the resources. Reports and (c) The responsible official shall prorecommendations of wildlife agencies vide an assurance in the FNSI or the should be incorporated into the envi- draft EIS that the proposed action ronmental assessment or environmen conforms with the SIP. tal impact statement. Consultation (d) The assurance of conformity procedures are detailed in 16 U.S.C. shall be based on a determination of 662.
the following: (g) Endangered species protection (1) The proposed action will be in Under the Endangered Species Act, 16 compliance with all applicable Federal U.S.C. 1531 et seq., Federal agencies and State air pollution emission limiare prohibited from jeopardizing tations and standards; threatened or endangered species or (2) The direct and indirect air polluadversely modifying habitats essential tion emissions resulting from the proto their survival. The responsible offi posed action have been expressly cial shall identify all designated en quantified in the emissions growth aldangered or threatened species or lowance of the SIP; or if a case-by-case their habitat that may be affected by offset approach is included in the SIP, an EPA action. If listed species or that offsets have been obtained for their habitat may be affected, formal the proposed action's air quality imconsultation must be undertaken with pacts; the Fish and Wildlife Service or the (3) The proposed action conforms to National Marine Fisheries Service, as the SIP's provisions for demonstrating appropriate. If the consultation re- reasonable further progress toward atveals that the EPA activity may tainment of the national ambient air jeopardize a listed species or habitat, quality standards by the required mitigation measures should be consid- date; ered. Applicable consultation proce- (4) The proposed action complies dures are found in 50 CFR Part 402. with all other provisions and require
ments of the SIP. 86.303 Air quality.
(e) During the 30-day FNSI and 45(a) The Clean Air Act, as amended in day draft EIS review time periods EPA 1977, 42 U.S.C. 7476(c), requires all shall provide an opportunity for the Federal projects, licenses, permits, State agency with primary responsibilplans, and financial assistance activi- ity for the SIP to concur or nonconcur ties to conform to any State Air Qual with the determination of conformity. ity Implementation Plan (SIP) ap All State notifications of concurrence proved or promulgated under section or nonconcurrence with the EPA con110 of the Act. For proposed EPA ac- formity determination shall include a tions that may significantly affect air record of consultation with the approquality, the responsible official shall priate section 174 agency and, where assess the extent of the direct or indi- different, the MPO. There shall be a
presumption of State concurrence if intent has been published. The reno objection is received by EPA during sponsible official shall conducta the review time period.
public hearing on a draft EIS. The re(f) The responsible official shall pro- sponsible official shall ensure that the vide in the FNSI or the final EIS a re- draft EIS is made available to the sponse to a notification of state non public at least 30 days in advance of concurrence with the EPA conformity the hearing. determination. This response shall in (d) Findings of no significant clude the basis by which the conform- impact. The responsible official shall ity of the proposed action to the SIP
allow for sufficient public review of a will be assured. If the responsible offi. FNSI before it becomes final. The cial finds that the State nonconcur FNSI and attendant publication must rence with the EPA conformity deter
state that interested persons disagreemination is unjustified, then an expla- ing with the decision may submit comnation of this finding shall be included
ments to EPA. The responsible official in the FNSI or the final EIS.
shall not take administrative action on
the project for at least thirty (30) calSubpart D-Public and Other Federal endar days after release of the FNSI Agency Involvement
and may allow more time for response.
The responsible official shall consider 8 6.400 Public involvement.
fully comments submitted before (a) General. EPA shall make diligent
taking administrative action. The efforts to involve the public in the en
FNSI shall be made available to the vironmental review process consistent
public in accordance with the requirewith program regulations and EPA
ments of 40 CFR 1506.6. One copy policies on public participation. The
shall be submitted to OFA. responsibile official shall ensure that (e) Record of decision. The responsipublic notice is provided for in accord
ble official shall disseminate the ance with 40 CFR 1506.6(b) and shall record of decision to those parties ensure that public involvement is car which commented on the draft or final ried out in accordance with EPA EIS. One copy shall be submitted to Public Participation Regulations, 40 OFA. CFR Part 25, and other applicable (f) Categorical Exclusions. The reEPA public participation procedures. sponsible official shall make the docu
(b) Publication of notices of intent. mentation described in $ 6.107(b) of As soon as practicable after his deci- this part available to the public and sion to prepare an EIS and before the shall send a copy to the Office of Fed. scoping process, the responsible offi. eral Activities. cial shall send the notice of intent to interested and affected members of
(44 FR 64177, Nov. 6, 1979, as amended at 47 the public and shall request the OFA
FR 9829, Mar. 8, 1982) to publish the notice of intent in the
8 6.401 Official filing requirements. FEDERAL REGISTER. The responsible of. ficial shall send to OFA the signed (a) General.OFA is responsible for original notice of intent for FEDERAL the conduct of the official filing REGISTER publication purposes. The system for EISs. This system was esscoping process should be initiated as tablished as a central repository for all soon as practicable in accordance with EISs which serves not only as means the requirements of 40 CFR 1501.7. of advising the public of the availabil. Participants in the scoping process ity of each EIS but provides a uniform shall be kept informed of substantial method for the computation of minichanges which evolve during the EIS mum time periods for the review of drafting process.
EISS. OFA publishes a weekly notice (c) Public meetings or hearings. in the FEDERAL REGISTER listing all Public meetings or hearings shall be EISs received during a given week. conducted consistent with Agency pro- The 45-day and 30-day review periods gram requirements. There shall be & for draft and final EISs, respectively, presumption that a scoping meeting are computed from the Friday followwill be conducted whenever a notice of ing a given reporting week. Pursuant
prescribed review periods based on the circumstances. (44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982)
to 40 CFR 1506.9, responsible officials shall comply with the guidelines established by OFA on the conduct of the filing system.
(b) Minimum time periods. No deci. sion on EPA actions shall be made until the later of the following dates: (1) Ninety (90) days after the date established in $ 6.401(a) of this part from which the draft EIS review time period is computed.
(2) Thirty (30) days after the date established in $ 6.401(a) of this part from which the final EIS review time period is computed.
(c) Filing of EISs. All EISs, including supplements, must be officially filed with OFA. Responsible officials shall transmit each EIS in five (5) copies to the Director, Office of Environmental Review, EIS Filing Section (A-104). OFA will provide CEQ with one copy of each EIS filed. NO EIS will be officially filed by OER unless the EIS has been made available to the public. OFA will not accept unbound copies of EISs for filing.
(d) Extensions or waivers. The responsible official may independently extend review periods. In such cases, the responsible official shall notify OFA as soon as possible so that adequate notice may be published in the weekly FEDERAL REGISTER report. OFA upon a showing of compelling reasons of national policy may reduce the prescribed review periods. Also, OFA upon a showing by any other Federal agency of compelling reasons of national policy may extend prescribed review periods, but only after consultation with the responsible official. If the responsible official does not concur with the extension of time, OFA may not extend a prescribed review period more than 30 days beyond the minimum prescribed review period.
(e) Rescission of filed EISs. The responsible official shall file EISs with OFA at the same time they are transmitted to commenting agencies and made available to the public. The responsible official is required to reproduce an adequate supply of EISs to satisfy these distribution requirements prior to filing an EIS. If the EIS is not made available, OFA will consider re. traction of the EIS or revision of the
8 6.402 Availability of documents.
(a) General. The responsible official will ensure sufficient copies of the EIS are distributed to interested and affected members of the public and are made available for further public distribution. EISs, comments received, and any underlying documents should be available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552(b)), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed actions. To the extent practicable, materials made available to the public shall be provided without charge; otherwise, a fee may be imposed which is not more than the actual cost of reproducing copies required to be sent to another Federal agency.
(b) Public information. Lists of all notices of intent, EISS, FNSIS, and records of decision prepared by EPA shall be maintained by OFA for the public. Each responsible official will maintain a similar monthly status report for all environmental documents prepared. In addition, OFA will make available for public inspection copies of EPA EISs; the responsible official shall do the same for any prepared EIS. (44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982)
8 6.403 The commenting process.
(a) Inviting comments. After preparing a draft EIS and before preparing a final EIS, the responsible official shall obtain the comments of Federal agencies, other governmental entities and the public in accordance with 40 CFR 1503.1.
(b) Response to comments. The responsible official shall respond to comments in the final EIS in accordance
(a) General. The responsible official shall consider preparing supplements