§ 6.204 Incorporation by reference.

In addition to 40 CFR 1502.21, material incorporated into an EIS by reference shall be organized to the extent possible into a Supplemental Information Document and be made available for review upon request. No material may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the period allowed for comment.

§ 6.205 List of preparers.

When the EIS is prepared by contract, either under direct contract to EPA or through an applicant's or grantee's contractor, the responsible official must independently evaluate the EIS prior to its approval and take responsibility for its scope and contents. The EPA officials who undertake this evaluation shall also be described under the list of preparers.

Subpart C-Coordination With Other Environmental Review and Consultation Requirements

§ 6.300 General.

Various Federal laws and executive orders address specific environmental concerns. The responsible official shall integrate to the greatest practicable extent the applicable procedures in this subpart during the implementation of the environmental review process under Subparts E through I. This subpart presents the central requirements of these laws and executive orders. It refers to the pertinent authority and regulations or guidance that contain the procedures. These laws and executive orders establish review procedures independent of NEPA requirements. The responsible official shall be familiar with any other EPA or appropriate agency procedures implementing these laws and executive orders.

§ 6.301 Historical and archeological sites. EPA is subject to the requirements of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq., the Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 et seq., and Executive Order 11593, en

titled "Protection and Enhancement of the Cultural Environment." These provisions and regulations establish review procedures independent of NEPA requirements.

(a) Under section 106 of the National Historic Preservation Act and Executive Order 11593, if an EPA undertaking affects any property with historic, architectural, archeological or cultural value that is listed on or eligible for listing on the National Register of Historic Places, the responsible official shall comply with the procedures for consultation and comment promulgated by the Advisory Council on Historic Preservation in 36 CFR Part 800. The responsible official must identify properties affected by the undertaking that are potentially eligible for listing on the National Register and shall request a determination of eligibility from the Keeper of the National Register, Department of the Interior, under the procedures in 36 CFR Part 63.

(b) Under the Archaeological and Historic Preservation Act, if an EPA activity may cause irreparable loss or destruction of significant scientific, prehistoric, historic or archeological data, the responsible official or the Secretary of the Interior is authorized to undertake data recovery and preservation activities. Applicable procedures are found in 36 CFR Parts 64 and 66.

§ 6.302 Wetlands, floodplains, agricultural lands, coastal zones, wild and scenic rivers, fish and wildlife and endangered species.

The following procedures shall apply to EPA administrative actions in programs to which the pertinent statute or executive order applies.

(a) Wetlands protection. Executive Order 11990, Protection of Wetlands, requires Federal agencies conducting certain activities to avoid, to the extent possible, the adverse impacts associated with the destruction or loss of wetlands and to avoid support of new construction in wetlands if a practicable alternative exists. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection (dated January 5, 1979, incorporated

as Appendix A hereto) requires EPA programs to determine if proposed actions will be in or will affect wetlands. If so, the responsible official shall prepare a floodplains/wetlands assessment, which will be part of the environmental assessment or environmental impact statement. The responsible official shall either avoid adverse impacts or minimize them if no practicable alternative to the action exists.

(b) Floodplain management. Executive Order 11988, Floodplain Management, requires Federal agencies to evaluate the potential effects of actions they may take in a floodplain to avoid, to the extent possible, adverse effects associated with direct and indirect development of a floodplain. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection (dated January 5, 1979, incorporated as Appendix A hereto), requires EPA programs to determine whether an action will be located in or will affect a floodplain. If so, the responsible official shall prepare a floodplain/wetlands assessment. The assessment will become part of the environmental assessment or environmental impact statement. The responsible official shall either avoid adverse impacts or minimize them if no practicable alternative exists.

(c) Agricultural lands. It is EPA's policy to consider the protection of the Nation's environmentally significant agricultural lands from irreversible conversion to uses which result in its loss as an environmental or essential food production resource. Before undertaking an action, the responsible official shall determine whether there are significant agricultural lands in the planning area. If significant agricultural lands are identified, direct and indirect effects of the undertaking on the land shall be evaluated and adverse effects avoided or mitigated, to the extent possible, in accordance with EPA's Policy to Protect Environmentally Significant Agricultural Lands (September 8, 1978).

(d) Coastal zone management. The Coastal Zone Management Act, 16 U.S.C. 1451 et seq., requires that all Federal activities in coastal areas be consistent with approved State Coastal Zone Management Programs, to the

maximum extent possible. If an EPA action may affect a coastal zone area, the responsible official shall assess the impact of the action on the coastal zone. If the action significantly affects the coastal zone area and the State has an approved coastal zone management program, a consistency determination shall be sought in accordance with procedures promulgated by the Office of Coastal Zone Management in 15 CFR 930.

(e) Wild and scenic rivers. Under the Wild and Scenic Rivers Act, 16 U.S.C. 1274 et seq., a Federal agency may not assist, through grant, loan, license or otherwise, the construction of a water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration. Nothing contained in the foregoing sentence, however, shall preclude licensing of, or assistance to, developments below or above a wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on the date of approval of the Wild and Scenic Rivers Act. The responsible officical shall determine whether there are any designated rivers in the planning area. The responsible official shall not recommend authorization of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration, in request of appropriations to begin construction of any such project, whether heretofore or hereafter authorized, without advising the Secretary of Interior or the Secretary of Agriculture, as the case may be, in writing of his intention at least sixty days in advance, and without specifically reporting to the Congress in writing at the time he makes his recommendation or request in what respect construction of such project would be in conflict with the purposes of the Wild and Scenic Rivers Act and would affect the component and the values to be protected by him under the Act.

Applicable consultation procedures are found in section 7 of the Act.

(f) Fish and wildlife protection. The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in actions that will result in the control or structural 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. The responsible official shall consult with the Fish and Wildlife Service and the appropriate State agency to ascertain the means and measures necessary to mitigate, prevent and compensate for project-related losses of wildlife resources and to enhance the resources. Reports and recommendations of wildlife agencies should be incorporated into the environmental assessment or environmental impact statement. Consultation procedures are detailed in 16 U.S.C. 662.

(g) Endangered species protection. Under the Endangered Species Act, 16 U.S.C. 1531 et seq., Federal agencies are prohibited from jeopardizing threatened or endangered species or adversely modifying habitats essential to their survival. The responsible official shall identify all designated endangered or threatened species or their habitat that may be affected by an EPA action. If listed species or their habitat may be affected, formal consultation must be undertaken with the Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate. If the consultation reveals that the EPA activity may jeopardize a listed species or habitat, mitigation measures should be considered. Applicable consultation procedures are found in 50 CFR Part 402.

§ 6.303 Air quality.

(a) The Clean Air Act, as amended in 1977, 42 U.S.C. 7476(c), requires all Federal projects, licenses, permits, plans, and financial assistance activities to conform to any State Air Quality Implementation Plan (SIP) approved or promulgated under section 110 of the Act. For proposed EPA actions that may significantly affect air quality, the responsible official shall assess the extent of the direct or indi

rect increases in emissions and the resultant change in air quality.

(b) If the proposed action may have a significant direct or indirect adverse effect on air quality, the responsible official shall consult with the appropriate State and local agencies as to the conformity of the proposed action with the SIP. Such agencies shall include the State agency with primary responsibility for the SIP, the agency designated under section 174 of the Clean Air Act and, where appropriate, the metropolitan planning organization (MPO). This consultation should include a request for a recommendation as to the conformity of the proposed action with the SIP.

(c) The responsible official shall provide an assurance in the FNSI or the draft EIS that the proposed action conforms with the SIP.

(d) The assurance of conformity shall be based on a determination of the following:

(1) The proposed action will be in compliance with all applicable Federal and State air pollution emission limitations and standards;

(2) The direct and indirect air pollution emissions resulting from the proposed action have been expressly quantified in the emissions growth allowance of the SIP; or if a case-by-case offset approach is included in the SIP, that offsets have been obtained for the proposed action's air quality impacts;

(3) The proposed action conforms to the SIP's provisions for demonstrating reasonable further progress toward attainment of the national ambient air quality standards by the required date;

(4) The proposed action complies with all other provisions and requirements of the SIP.

(e) During the 30-day FNSI and 45day draft EIS review time periods EPA shall provide an opportunity for the State agency with primary responsibility for the SIP to concur or nonconcur with the determination of conformity. All State notifications of concurrence or nonconcurrence with the EPA conformity determination shall include a record of consultation with the appropriate section 174 agency and, where different, the MPO. There shall be a

presumption of State concurrence if no objection is received by EPA during the review time period.

(f) The responsible official shall provide in the FNSI or the final EIS a response to a notification of state nonconcurrence with the EPA conformity determination. This response shall include the basis by which the conformity of the proposed action to the SIP will be assured. If the responsible offiIcial finds that the State nonconcurrence with the EPA conformity determination is unjustified, then an explanation of this finding shall be included in the FNSI or the final EIS.

Subpart D-Public and Other Federal Agency Involvement

§ 6.400 Public involvement.

(a) General. EPA shall make diligent efforts to involve the public in the environmental review process consistent with program regulations and EPA policies on public participation. The responsibile official shall ensure that public notice is provided for in accordance with 40 CFR 1506.6(b) and shall ensure that public involvement is carried out in accordance with EPA Public Participation Regulations, 40 CFR Part 25, and other applicable EPA public participation procedures.

(b) Publication of notices of intent. As soon as practicable after his decision to prepare an EIS and before the scoping process, the responsible official shall send the notice of intent to interested and affected members of the public and shall request the OFA to publish the notice of intent in the FEDERAL REGISTER. The responsible official shall send to OFA the signed original notice of intent for FEDERAL REGISTER publication purposes. The scoping process should be initiated as soon as practicable in accordance with the requirements of 40 CFR 1501.7. Participants in the scoping process shall be kept informed of substantial changes which evolve during the EIS drafting process.

(c) Public meetings or hearings. Public meetings or hearings shall be conducted consistent with Agency program requirements. There shall be a presumption that a scoping meeting will be conducted whenever a notice of

intent has been published. The responsible official shall conduct a public hearing on a draft EIS. The responsible official shall ensure that the draft EIS is made available to the public at least 30 days in advance of the hearing.

(d) Findings of no significant impact. The responsible official shall allow for sufficient public review of a FNSI before it becomes final. The FNSI and attendant publication must state that interested persons disagreeing with the decision may submit comments to EPA. The responsible official shall not take administrative action on the project for at least thirty (30) calendar days after release of the FNSI and may allow more time for response. The responsible official shall consider fully comments submitted before taking administrative action. The FNSI shall be made available to the public in accordance with the requirements of 40 CFR 1506.6. One copy shall be submitted to OFA.

(e) Record of decision. The responsible official shall disseminate the record of decision to those parties which commented on the draft or final EIS. One copy shall be submitted to OFA.

(f) Categorical Exclusions. The responsible official shall make the documentation described in § 6.107(b) of this part available to the public and shall send a copy to the Office of Federal Activities.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 6.401 Official filing requirements.

(a) General. OFA is responsible for the conduct of the official filing system for EISS. This system was established as a central repository for all EISS which serves not only as means of advising the public of the availability of each EIS but provides a uniform method for the computation of minimum time periods for the review of EISS. OFA publishes a weekly notice in the FEDERAL REGISTER listing all EISS received during a given week. The 45-day and 30-day review periods for draft and final EISs, respectively, are computed from the Friday following a given reporting week. Pursuant

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 decision 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

review period.

minimum prescribed

(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 retraction of the EIS or revision of the

prescribed review periods based on the circumstances.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 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]

§ 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 with 40 CFR 1503.4.

§ 6.404 Supplements.

(a) General. The responsible official shall consider preparing supplements