National Environmental Policy Act and the Decision Process

[Title 32 CFR B]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter V - DEPARTMENT OF THE ARMY (CONTINUED)]
[Subchapter K - ENVIRONMENTAL QUALITY]
[Part 651 - ENVIRONMENTAL ANALYSIS OF ARMY ACTIONS (AR 200-2)]
[Subpart B - National Environmental Policy Act and the Decision Process]
[From the U.S. Government Printing Office]

32NATIONAL DEFENSE42002-07-012002-07-01falseNational Environmental Policy Act and the Decision ProcessBSubpart BNATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE ARMY (CONTINUED)ENVIRONMENTAL QUALITYENVIRONMENTAL ANALYSIS OF ARMY ACTIONS (AR 200-2)
Subpart B--National Environmental Policy Act and the Decision Process

Sec. 651.9 Introduction.

(a) The NEPA process is the systematic examination of possible and
probable environmental consequences of implementing a proposed action.
Integration of the NEPA process with other Army projects and program
planning must occur at the earliest possible time to ensure that:
(1) Planning and decision-making reflect Army environmental values,
such as compliance with environmental policy, laws, and regulations; and
that these values are evident in Army decisions. In addition, Army
decisions must reflect consideration of other requirements such as
Executive Orders and other non-statutory requirements, examples of which
are enumerated in Sec. 651.14(e).
(2) Army and DOD environmental policies and directives are
implemented.
(3) Delays and potential conflicts in the process are minimized. The
public should be involved as early as possible to avoid potential
delays.
(b) All Army decision-making that may impact the human environment
will use a systematic, interdisciplinary approach that ensures the
integrated use of the natural and social sciences, planning, and the
environmental design arts (section 102(2)(a), Public Law 91-190, 83
Stat. 852, National Environmental Policy Act of 1969 (NEPA)). This
approach allows timely identification of environmental effects and
values in sufficient detail for concurrent evaluation with economic,
technical, and mission-related analyses, early in the decision process.
(c) The proponent of an action or project must identify and describe
the range of reasonable alternatives to accomplish the purpose and need
for the proposed action or project, taking a ``hard look'' at the
magnitude of potential impacts of implementing the reasonable
alternatives, and evaluating their significance. To assist in
identifying reasonable alternatives, the proponent should consult with
the installation environmental office and appropriate federal, tribal,
state, and local agencies, and the general public.

Sec. 651.10 Actions requiring environmental analysis.

The general types of proposed actions requiring environmental impact
analysis under NEPA, unless categorically excluded or otherwise included
in existing NEPA documentation, include:
(a) Policies, regulations, and procedures (for example, Army and
installation regulations).
(b) New management and operational concepts and programs, including
logistics; RDT&E; procurement; personnel assignment; real property and
facility management (such as master plans); and environmental programs
such as Integrated Natural Resource Management Plan (INRMP), Integrated
Cultural Resources Management Plan (ICRMP), and Integrated Pest
Management Plan. NEPA requirements may be incorporated into other Army
plans in accordance with 40 CFR 1506.4.
(c) Projects involving facilities construction.
(d) Operations and activities including individual and unit
training, flight operations, overall operation of installations, or
facility test and evaluation programs.

[[Page 394]]

(e) Actions that require licenses for operations or special material
use, including a Nuclear Regulatory Commission (NRC) license, an Army
radiation authorization, or Federal Aviation Administration air space
request (new, renewal, or amendment), in accordance with AR 95-50.
(f) Materiel development, operation and support, disposal, and/or
modification as required by DOD 5000.2-R.
(g) Transfer of significant equipment or property to the ARNG or
Army Reserve.
(h) Research and development including areas such as genetic
engineering, laser testing, and electromagnetic pulse generation.
(i) Leases, easements, permits, licenses, or other entitlement for
use, to include donation, exchange, barter, or Memorandum of
Understanding (MOU). Examples include grazing leases, grants of easement
for highway right-of-way, and requests by the public to use land for
special events such as air shows or carnivals.
(j) Federal contracts, grants, subsidies, loans, or other forms of
funding such as Government-Owned, Contractor-Operated (GOCO) industrial
plants or housing and construction via third-party contracting.
(k) Request for approval to use or store materials, radiation
sources, hazardous and toxic material, or wastes on Army land. If the
requester is non-Army, the responsibility to prepare proper
environmental documentation may rest with the non-Army requester, who
will provide needed information for Army review. The Army must review
and adopt all NEPA documentation before approving such requests.
(l) Projects involving chemical weapons/munitions.

Sec. 651.11 Environmental review categories.

The following are the five broad categories into which a proposed
action may fall for environmental review:
(a) Exemption by law. The law must apply to DOD and/or the Army and
must prohibit, exempt, or make impossible full compliance with the
procedures of NEPA (40 CFR 1506.11). While some aspects of Army
decision-making may be exempted from NEPA, other aspects of an action
are still subject to NEPA analysis and documentation. The fact that
Congress has directed the Army to take an action does not constitute an
exemption.
(b) Emergencies. In the event of an emergency, the Army will, as
necessary, take immediate actions that have environmental impacts, such
as those to promote national defense or security or to protect life or
property, without the specific documentation and procedural requirements
of other sections of this part. In such cases, at the earliest
practicable time, the HQDA proponent will notify the ODEP, which in turn
will notify the ASA(I&E). ASA(I&E) will coordinate with the Deputy Under
Secretary of Defense for Installations and Environment (DUSD(IE)) and
the CEQ regarding the emergency and subsequent NEPA compliance after the
emergency action has been completed. These notifications apply only to
actions necessary to control the immediate effects of the emergency.
Other actions remain subject to NEPA review (40 CFR 1506.11). A public
affairs plan should be developed to ensure open communication among the
media, the public, and the installation. The Army will not delay an
emergency action necessary for national defense, security, or
preservation of human life or property in order to comply with this part
or the CEQ regulations. However, the Army's on-site commander dealing
with the emergency will consider the probable environmental consequences
of proposed actions, and will minimize environmental damage to the
maximum degree practicable, consistent with protecting human life,
property, and national security. State call-ups of ARNG during a natural
disaster or other state emergency are excluded from this notification
requirement. After action reports may be required at the discretion of
the ASA(I&E).
(c) Categorical Exclusions (CXs). These are categories of actions
that normally do not require an EA or an EIS. The Army has determined
that they do not individually or cumulatively have a substantial effect
on the human environment. Qualification for a CX is further described in
Subpart D and Appendix B of this part. In accordance with

[[Page 395]]

Sec. 651.29, actions that degrade the existing environment or are
environmentally controversial or adversely affect environmentally
sensitive resources will require an EA.
(d) Environmental Assessment. Proposed Army actions not covered in
the first three categories (paragraphs (a) through (c) of this section)
must be analyzed to determine if they could cause significant impacts to
the human or natural environment (see Sec. 651.39). The EA determines
whether possible impacts are significant, thereby warranting an EIS.
This requires a ``hard look'' at the magnitude of potential impacts,
evaluation of their significance, and documentation in the form of
either an NOI to prepare an EIS or a FNSI. The format (Sec. 651.34) and
requirements for this analysis are addressed in Subpart E of this part
(see Sec. 651.33 for actions normally requiring an EA). The EA is a
valuable planning tool to discuss and document environmental impacts,
alternatives, and controversial actions, providing public and agency
participation, and identifying mitigation measures.
(e) EIS. When an action clearly has significant impacts or when an
EA cannot be concluded by a FNSI, an EIS must be prepared. An EIS is
initiated by the NOI (Sec. 651.22), and will examine the significant
environmental effects of the proposed action as well as accompanying
measures to mitigate those impacts. This process requires formal
interaction with the public, a formal ``scoping'' process, and specified
timelines for public review of the documentation and the incorporation
of public comments. The format and requirements for the EIS are
addressed in Subpart F of this part (see Sec. 651.42 for actions
normally requiring an EIS).

Sec. 651.12 Determining appropriate level of NEPA analysis.

(a) The flow chart shown in Figure 1 summarizes the process for
determining documentation requirements, as follows:

[[Page 396]]

[GRAPHIC] [TIFF OMITTED] TR29MR02.000

(1) If the proposed action qualifies as a CX (Subpart D of this
part), and the screening criteria are met (Sec. 651.29), the action can
proceed. Some CXs require a REC.
(2) If the proposed action is adequately covered within an existing
EA or EIS, a REC is prepared to that effect. The REC should state the
applicable EA or EIS title and date, and identify where it may be
reviewed (Sec. 651.19, Figure 3). The REC is then attached to the
proponent's record copy of that EA or EIS.
(3) If the proposed action is within the general scope of an
existing EA or

[[Page 397]]

EIS, but requires additional information, a supplement is prepared,
considering the new, modified, or missing information. Existing
documents are incorporated by reference and conclusions are published as
either a FNSI or NOI to supplement the EIS.
(4) If the proposed action is not covered adequately in any existing
EA or EIS, or is of a significantly larger scope than that described in
the existing document, an EA is prepared, followed by either a FNSI or
NOI to prepare an EIS. Initiation of an EIS may proceed without first
preparing an EA, if deemed appropriate by the proponent.
(5) If the proposed action is not within the scope of any existing
EA or EIS, then the proponent must begin the preparation of a new EA or
EIS, as appropriate.
(b) The proponent of a proposed action may adopt appropriate
environmental documents (EAs or EISs) prepared by another agency (40 CFR
1500.4(n) and 1506.3). In such cases, the proponent will document their
use in a REC FNSI, or ROD.

Sec. 651.13 Classified actions.

(a) For proposed actions and NEPA analyses involving classified
information, AR 380-5 (Department of the Army Information Security
Program) will be followed.
(b) Classification does not relieve a proponent of the requirement
to assess and document the environmental effects of a proposed action.
(c) When classified information can be reasonably separated from
other information and a meaningful environmental analysis produced,
unclassified documents will be prepared and processed in accordance with
this part. Classified portions will be kept separate and provided to
reviewers and decision makers in accordance with AR 380-5.
(d) When classified information is such an integral part of the
analysis of a proposal that a meaningful unclassified NEPA analysis
cannot be produced, the proponent, in consultation with the appropriate
security and environmental offices, will form a team to review
classified NEPA analysis. This interdisciplinary team will include
environmental professionals to ensure that the consideration of
environmental effects will be consistent with the letter and intent of
NEPA, including public participation requirements for those aspects
which are not classified.

Sec. 651.14 Integration with Army planning.

(a) Early integration. The Army goal is to concurrently integrate
environmental reviews with other Army planning and decision-making
actions, thereby avoiding delays in mission accomplishment. To achieve
this goal, proponents shall complete NEPA analysis as part of any
recommendation or report to decision makers prior to the decision
(subject to 40 CFR 1506.1). Early planning (inclusion in Installation
Master Plans, INRMPs, ICRMPs, Acquisition Strategies, strategic plans,
etc.) will allow efficient program or project execution later in the
process.
(1) The planning process will identify issues that are likely to
have an effect on the environment, or to be controversial. In most
cases, local citizens and/or existing advisory groups should assist in
identifying potentially controversial issues during the planning
process. The planning process also identifies minor issues that have
little or no measurable environmental effect, and it is sound NEPA
practice to reduce or eliminate discussion of minor issues to help focus
analyses. Such an approach will minimize unnecessary analysis and
discussion in the NEPA process and documents.
(2) Decision makers will be informed of and consider the
environmental consequences at the same time as other factors such as
mission requirements, schedule, and cost. If permits or coordination are
required (for example, Section 404 of the Clean Water Act, Endangered
Species Act consultation, Section 106 of the National Historic
Preservation Act (NHPA), etc.), they should be initiated no later than
the scoping phase of the process and should run parallel to the NEPA
process, not sequential to it. This practice is in accordance with the
recommendations

[[Page 398]]

presented in the CEQ publication entitled ``The National Environmental
Policy Act: A Study of Its Effectiveness After Twenty-five Years.''
(3) NEPA documentation will accompany the proposal through the Army
review and decision-making processes. These documents will be forwarded
to the planners, designers, and/or implementers, ensuring that the
recommendations and mitigations upon which the decision was based are
being carried out. The implementation process will provide necessary
feedback for adaptive environmental management; responding to
inaccuracies or uncertainties in the Army's ability to accurately
predict impacts, changing field conditions, or unexpected results from
monitoring. The integration of NEPA into the ongoing planning activities
of the Army can produce considerable savings to the Army.\1\
---------------------------------------------------------------------------

\1\ For example, a well-executed EA or EIS on an Installation Master
Plan can eliminate the need for many case-by-case analyses and
documentation for construction projects. After the approval of an
adequate comprehensive plan (which adequately addresses the potential
for environmental effects), subsequent projects can tier off of the
Master Plan NEPA analysis (AR 210-20). Other integration of the NEPA
process and broad-level planning can lead to the ``tiering'' of NEPA,
allowing the proponent to minimize the effort spent on individual
projects, and ``incorporating by reference'' the broader level
environmental considerations. This tiering allows the development of
program level (programmatic) EAs and EISs, which can introduce greater
economies of scale. These assessments are addressed in more detail in
paragraph (c) of this section.
---------------------------------------------------------------------------

(b) Time limits. The timing of the preparation, circulation,
submission, and public availability of NEPA documentation is important
to ensure that environmental values are integrated into Army planning
and decisions.
(1) Categorical exclusions. When a proposed action is categorically
excluded from further environmental review (Subpart D and Appendix B of
this part), the proponent may proceed immediately with that action upon
receipt of all necessary approvals, (including local environmental
office confirmation that the CX applies to the proposal) and the
preparation of a REC, if required.
(2) Findings of no significant impact. (i) A proponent will make an
EA and draft FNSI available to the public for review and comment for a
minimum of 30 days prior to making a final decision and proceeding with
an action. If the proposed action is one of national concern, is
unprecedented, or normally requires an EIS (Sec. 651.42), the FNSI must
be published in the FR. Otherwise, the FNSI must be published in local
newspapers and be made widely available. The FNSI must articulate the
deadline for receipt of comments, availability of the EA for review, and
steps required to obtain the EA. This can include a POC, address, and
phone number; a location; a reference to a website; or some equivalent
mechanism. (In no cases will the only coordination mechanism be a
website.) At the conclusion of the appropriate comment period, as
specified in Figure 2, the decision maker may sign the FNSI and take
immediate action, unless sufficient public comments are received to
warrant more time for their resolution. Figure 2 follows:

[[Page 399]]

[GRAPHIC] [TIFF OMITTED] TR29MR02.001

(ii) A news release is required to publicize the availability of the
EA and draft FNSI, and a simultaneous announcement that includes
publication in the FR must be made by HQDA, if warranted (see
Sec. 651.35 (e)). The 30-day waiting period begins at the time that the
draft FNSI is publicized (40 CFR 1506.6(b)).
(iii) In cases where the 30-day comment period jeopardizes the
project and the full comment period would provide no public benefit, the
period may be shortened with appropriate approval by a higher decision
authority (such as a MACOM). In no circumstances should the public
comment period for an EA/draft FNSI be less than 15 days. A deadline and
POC for receipt of comments must be included in the draft FNSI and the
news release.
(3) EIS. The EPA publishes a weekly notice in the FR of the EISs
filed during the preceding week. This notice usually occurs each Friday.
An NOA reaching EPA on a Friday will be published in the following
Friday issue of the FR. Failure to deliver an NOA to EPA by close of
business on Friday will result in an additional one-week delay. A news
release publicizing the action will be made in conjunction with the
notice in the FR. The following time periods, calculated from the
publication date of the EPA notice, will be observed:
(i) Not less than 45 days for public comment on DEISs (40 CFR
1506.10(c)).
(ii) Not less than 15 days for public availability of DEISs prior to
any public hearing on the DEIS (40 CFR 1506(c)(2)).
(iii) Not less than 90 days from filing the DEIS prior to any
decision on the proposed action. These periods may run concurrently (40
CFR 1506.10(b) and (c)).
(iv) The time periods prescribed here may be extended or reduced in
accordance with 40 CFR 1506.10(b)(2) and (d).
(v) When variations to these time limits are set, the Army agency
should consider the factors in 40 CFR 1501.8(b)(1).
(vi) The proponent may also set time limits for other procedures or
decisions related to DEISs and FEISs as listed in 40 CFR 1501.8(b)(2).
(vii) Because the entire EIS process could require more than one
year (Figure 2 in paragraph (b)(2)(i) of this section), the process must
begin as soon as the project is sufficiently mature to allow analysis of
alternatives and the proponent must coordinate with all staff elements
with a role to play in the NEPA process. DEIS preparation and response
to comments constitute the largest portion of time to prepare an FEIS.

[[Page 400]]

(viii) A public affairs plan should be developed that provides for
periodic interaction with the community. There is a minimum public
review time of 90 days between the publication of the DEIS and the
announcement of the ROD. After the availability of the ROD is announced,
the action may proceed. This announcement must be made through the FR
for those EISs for which HQDA signs the ROD. For other EISs,
announcements in the local press are adequate. Figure 2 in paragraph
(b)(2)(i) of this section indicates typical and required time periods
for EISs.
(c) Programmatic environmental review (tiering). (1) Army agencies
are encouraged to analyze actions at a programmatic level for those
programs that are similar in nature or broad in scope (40 CFR 1502.4(c),
1502.20, and 1508.23). This level of analysis will eliminate repetitive
discussions of the same issues and focus on the key issues at each
appropriate level of project review. When a broad programmatic EA or EIS
has been prepared, any subsequent EIS or EA on an action included within
the entire program or policy (particularly a site-specific action) need
only summarize issues discussed in the broader statement and concentrate
on the issues specific to the subsequent action.\2\ This subsequent
document will state where the earlier document is available.
---------------------------------------------------------------------------

\2\ As an example, an appropriate way to address diverse weapon
system deployments would be to produce site-specific EAs or EISs for
each major deployment installation, using the generic environmental
effects of the weapon system identified in a programmatic EA or EIS
prepared by the MATDEV.
---------------------------------------------------------------------------

(2) Army proponents are normally required to prepare many types of
management plans that must include or be accompanied by appropriate NEPA
analysis. NEPA analysis for these types of plans can often be
accomplished with a programmatic approach, creating an analysis that
covers a number of smaller projects or activities. In cases where such
activities are adequately assessed as part of these normal planning
activities, a REC can be prepared for smaller actions that cite the
document in which the activities were previously assessed. Care must be
taken to ensure that site-specific or case-specific conditions are
adequately addressed in the existing programmatic document before a REC
can be used, and the REC must reflect this consideration. If additional
analyses are required, they can ``tier'' off the original analyses,
eliminating duplication. Tiering, in this manner, is often applicable to
Army actions that are long-term, multi-faceted, or multi-site.
(d) Scoping. (1) When the planning for an Army project or action
indicates a need for an EIS, the proponent initiates the scoping process
(see Subpart G of this part for procedures and actions). This process
determines the scope of issues to address in the EIS and identifies the
significant issues related to the proposed action. During the scoping,
process participants identify the range of actions, alternatives, and
impacts to consider in the EIS (40 CFR 1508.25). For an individual
action, the scope may depend on the relationship of the proposed action
to other NEPA documents. The scoping phase of the NEPA process, as part
of project planning, will identify aspects of the proposal that are
likely to have an effect or be controversial; and will ensure that the
NEPA analyses are useful for a decision maker. For example, the early
identification and initiation of permit or coordination actions can
facilitate problem resolution, and, similarly, cumulative effects can be
addressed early in the process and at the appropriate spatial and
temporal scales.
(2) The extent of the scoping process, including public involvement,
will depend on several factors. These factors include:
(i) The size and type of the proposed action.
(ii) Whether the proposed action is of regional or national
interest.
(iii) Degree of any associated environmental controversy.
(iv) Size of the affected environmental parameters.
(v) Significance of any effects on them.
(vi) Extent of prior environmental review.
(vii) Involvement of any substantive time limits.

[[Page 401]]

(viii) Requirements by other laws for environmental review.
(ix) Cumulative impacts.
(3) Through scoping, many future controversies can be eliminated,
and public involvement can be used to narrow the scope of the study,
concentrating on those aspects of the analysis that are truly important.
(4) The proponent may incorporate scoping as part of the EA process,
as well. If the proponent chooses a public involvement strategy, the
extent of scoping incorporated is at the proponent's discretion.
(e) Analyses and documentation. Several statutes, regulations, and
Executive Orders require analyses, consultation, documentation, and
coordination, which duplicate various elements and/or analyses required
by NEPA and the CEQ regulations; often leading to confusion, duplication
of effort, omission, and, ultimately, unnecessary cost and delay.
Therefore, Army proponents are encouraged to identify, early in the NEPA
process, opportunities for integrating those requirements into proposed
Army programs, policies, and projects. Environmental analyses required
by this part will be integrated as much as practicable with other
environmental reviews, laws, and Executive Orders (40 CFR 1502.25).
Incorporation of these processes must ensure that the individual
requirements are met, in addition to those required by NEPA. The NEPA
process does not replace the procedural or substantive requirements of
other environmental statutes and regulations. Rather, it addresses them
in one place so the decision maker has a concise and comprehensive view
of the major environmental issues and understands the interrelationships
and potential conflicts among the environmental components. NEPA is the
``umbrella'' that facilitates such coordination by integrating processes
that might otherwise proceed independently. Prime candidates for such
integration include, but are not limited to, the following:
(1) Clean Air Act, as amended (General Conformity Rule, 40 CFR parts
51 and 93).
(2) Endangered Species Act.
(3) NHPA, sections 106 and 110.
(4) NAGPRA (Public Law 101-601, 104 Stat. 3048).
(5) Clean Water Act, including Section 404(b)(1).
(6) American Indian Religious Freedom Act.
(7) Fish and Wildlife Coordination Act.
(8) Comprehensive Environmental Response, Compensation, and
Liability Act.
(9) Resource Conservation and Recovery Act.
(10) Pollution Prevention Act.
(11) The Sikes Act, Public Law 86-797, 74 Stat. 1052.
(12) Federal Compliance with Right-to-Know Laws and Pollution
Prevention Requirements (Executive Order 12856, 3 CFR, 1993 Comp., p.
616).
(13) Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (Executive Order 12898, 3 CFR,
1994 Comp., p. 859).
(14) Indian Sacred Sites (Executive Order 13007, 3 CFR, 1996 Comp.,
p. 196).
(15) Protection of Children From Environmental Health Risks and
Safety Risks (Executive Order 13045, 3 CFR, 1997 Comp., p. 198).
(16) Federal Support of Community Efforts Along American Heritage
Rivers (Executive Order 13061, 3 CFR, 1997 Comp., p. 221).
(17) Floodplain Management (Executive Order 11988, 3 CFR, 1977
Comp., p. 117).
(18) Protection of Wetlands (Executive Order 11990, 3 CFR, 1977
Comp., p. 121).
(19) Environmental Effects Abroad of Major Federal Actions
(Executive Order 12114, 3 CFR, 1979 Comp., p. 356).
(20) Invasive Species (Executive Order 13112, 3 CFR, 1999 Comp., p.
159).
(21) AR 200-3, Natural Resources--Land, Forest, and Wildlife
Management.
(22) Environmental analysis and documentation required by various
state laws.
(23) Any cost-benefit analyses prepared in relation to a proposed
action (40 CFR 1502.23).
(24) Any permitting and licensing procedures required by federal and
state law.

[[Page 402]]

(25) Any installation and Army master planning functions and plans.
(26) Any installation management plans, particularly those that deal
directly with the environment.
(27) Any stationing and installation planning, force development
planning, and materiel acquisition planning.
(28) Environmental Noise Management Program.
(29) Hazardous waste management plans.
(30) Integrated Cultural Resource Management Plan as required by AR
200-4 and DODD 4700.4, Natural Resources Management Program.
(31) Asbestos Management Plans.
(32) Integrated Natural Resource Management Plans, AR 200-3, Natural
Resources--Land, Forest, and Wildlife Management, and DODD 4700.4,
Natural Resources Management Program.
(33) Environmental Baseline Surveys.
(34) Programmatic Environment, Safety, and Health Evaluation (PESHE)
as required by DOD 5000.2-R and DA Pamphlet 70-3, Army Acquisition
Procedures, supporting AR 70-1, Acquisition Policy.
(35) The DOD MOU to Foster the Ecosystem Approach signed by CEQ, and
DOD, on 15 December 1995; establishing the importance of ``non-listed,''
``non-game,'' and ``non-protected'' species.
(36) Other requirements (such as health risk assessments), when
efficiencies in the overall Army environmental program will result.
(f) Integration into Army acquisition. The Army acquisition
community will integrate environmental analyses into decision-making, as
required in this part ensuring that environmental considerations become
an integral part of total program planning and budgeting, PEOs, and
Program, Product, and Project Managers integrate the NEPA process early,
and acquisition planning and decisions reflect national and Army
environmental values and considerations. By integrating pollution
prevention and other aspects of any environmental analysis early into
the materiel acquisition process, the PEO and PM facilitate the
identification of environmental cost drivers at a time when they can be
most effectively controlled. NEPA program coordinators should refer to
DA Pamphlet 70-3, Army Acquisition Procedures, and the Defense
Acquisition Deskbook (DAD) for current specific implementation guidance,
procedures, and POCs.
(g) Relations with local, state, regional, and tribal agencies. (1)
Army installation, agency, or activity environmental officers or
planners should establish a continuing relationship with other agencies,
including the staffs of adjacent local, state, regional, and tribal
governments and agencies. This relationship will promote cooperation and
resolution of mutual land use and environment-related problems, and
promote the concept of regional ecosystem management as well as general
cooperative problem solving. Many of these ``partners'' will have
specialized expertise and access to environmental baseline data, which
will assist the Army in day-to-day planning as well as NEPA-related
issues. MOUs are encouraged to identify areas of mutual interest,
establish POCs, identify lines of communication between agencies, and
specify procedures to follow in conflict resolution. Additional
coordination is available from state and area-wide planning and
development agencies. Through this process, the proponent may gain
insights on other agencies' approaches to EAs, surveys, and studies
applicable to the current proposal. These other agencies would also be
able to assist in identifying possible participants in scoping
procedures for projects requiring an EIS.
(2) In some cases, local, state, regional, or tribal governments or
agencies will have sufficient jurisdiction by law or special expertise
with respect to reasonable alternatives or significant environmental,
social, or economic impacts associated with a proposed action. When
appropriate, proponents of an action should determine whether these
entities have an interest in becoming a cooperating agency (Sec. 651.45
(b) and 40 CFR 1501.6). If cooperating agency status is established, a
memorandum of agreement is required to document specific expectations,
roles, and responsibilities, including analyses to be performed, time
schedules, availability of pre-decisional information, and other issues.
Cooperating agencies may use their own funds, and the designation of
cooperating agency status

[[Page 403]]

neither enlarges nor diminishes the decision-making status of any
federal or non-federal entities (see CEQ Memorandum for Heads of Federal
Agencies entitled ``Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of the
National Environmental Policy Act'' dated 28 July 1999, available from
the President's Council on Environmental Quality (CEQ), Executive Office
of the President of the U.S.). In determining sufficient jurisdiction or
expertise, CEQ regulations can be used as guidance.
(h) The Army as a cooperating agency. Often, other agencies take
actions that can negatively impact the Army mission. In such cases, the
Army may have some special or unique expertise or jurisdiction.
(1) The Army may be a cooperating agency (40 CFR 1501.6) in order
to:
(i) Provide information or technical expertise to a lead agency.
(ii) Approve portions of a proposed action.
(iii) Ensure the Army has an opportunity to be involved in an action
of another federal agency that will affect the Army.
(iv) Provide review and approval of the portions of EISs and RODs
that affect the Army.
(2) Adequacy of an EIS is primarily the responsibility of the lead
agency. However, as a cooperating agency with approval authority over
portions of a proposal, the Army may adopt an EIS if review concludes
the EIS adequately satisfies the Army's comments and suggestions.
(3) If the Army is a major approval authority for the proposed
action, the appropriate Army official may sign the ROD prepared by the
lead agency, or prepare a separate, more focused ROD. If the Army's
approval authority is only a minor aspect of the overall proposal, such
as issuing a temporary use permit, the Army need not sign the lead
agency's ROD or prepare a separate ROD.
(4) The magnitude of the Army's involvement in the proposal will
determine the appropriate level and scope of Army review of NEPA
documents. If the Army is a major approval authority or may be severely
impacted by the proposal or an alternative, the Army should undertake
the same level of review as if it were the lead agency. If the
involvement is limited, the review may be substantially less. The lead
agency is responsible for overall supervision of the EIS, and the Army
will attempt to meet all reasonable time frames imposed by the lead
agency.
(5) If an installation (or other Army organization) should become
aware of an EIS being prepared by another federal agency in which they
may be involved within the discussion of the document, they should
notify ASA(I&E) through the chain of command. ASA(I&E) will advise
regarding appropriate Army participation as a cooperating agency, which
may simply involve local coordination.

Sec. 651.15 Mitigation and monitoring.

(a) Throughout the environmental analysis process, the proponent
will consider mitigation measures to avoid or minimize environmental
harm. Mitigation measures include:
(1) Avoiding the impact altogether, by eliminating the action or
parts of the action.
(2) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the impact; by repairing, rehabilitating, or
restoring the adverse effect on the environment.
(4) Reducing or eliminating the impact over time, by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact, by replacing or providing
substitute resources or environments. (Examples and further
clarification are presented in Appendix C of this part.)
(b) When the analysis proceeds to an EA or EIS, mitigation measures
will be clearly assessed and those selected for implementation will be
identified in the FNSI or the ROD. The proponent must implement those
identified mitigations, because they are commitments made as part of the
Army decision. The proponent is responsible for responding to inquiries
from the public or other agencies regarding the status of mitigation
measures adopted in the NEPA process. The mitigation shall become a line
item in the proponent's

[[Page 404]]

budget or other funding document, if appropriate, or included in the
legal document implementing the action (for example, contracts, leases,
or grants). Only those practical mitigation measures that can reasonably
be accomplished as part of a proposed alternative will be identified.
Any mitigation measures selected by the proponent will be clearly
outlined in the NEPA decision document, will be budgeted and funded (or
funding arranged) by the proponent, and will be identified, with the
appropriate fund code, in the EPR (AR 200-1). Mitigations will be
monitored through environmental compliance reporting, such as the ISR
(AR 200-1) or the Environmental Quality Report. Mitigation measures are
identified and funded in accordance with applicable laws, regulations,
or other media area requirements.
(c) Based upon the analysis and selection of mitigation measures
that reduce environmental impacts until they are no longer significant,
an EA may result in a FNSI. If a proponent uses mitigation measures in
such a manner, the FNSI must identify these mitigating measures, and
they become legally binding and must be accomplished as the project is
implemented. If any of these identified mitigation measures do not
occur, so that significant adverse environmental effects could
reasonably expected to result, the proponent must publish an NOI and
prepare an EIS.
(d) Potential mitigation measures that appear practical, and are
unobtainable within expected Army resources, or that some other agency
(including non-Army agencies) should perform, will be identified in the
NEPA analysis to the maximum extent practicable. A number of factors
determine what is practical, including military mission, manpower
restrictions, cost, institutional barriers, technical feasibility, and
public acceptance. Practicality does not necessarily ensure resolution
of conflicts among these items, rather it is the degree of conflict that
determines practicality. Although mission conflicts are inevitable, they
are not necessarily insurmountable; and the proponent should be cautious
about declaring all mitigations impractical and carefully consider any
manpower requirements. The key point concerning both the manpower and
cost constraints is that, unless money is actually budgeted and manpower
assigned, the mitigation does not exist. Coordination by the proponent
early in the process will be required to allow ample time to get the
mitigation activities into the budget cycle. The project cannot be
undertaken until all required mitigation efforts are fully resourced, or
until the lack of funding and resultant effects, are fully addressed in
the NEPA analysis.
(e) Mitigation measures that were considered but rejected, including
those that can be accomplished by other agencies, must be discussed,
along with the reason for the rejection, within the EA or EIS. If they
occur in an EA, their rejection may lead to an EIS, if the resultant
unmitigated impacts are significant.
(f) Proponents may request assistance with mitigation from
cooperating non-Army agencies, when appropriate. Such assistance is
appropriate when the requested agency was a cooperating agency during
preparation of a NEPA document, or has the technology, expertise, time,
funds, or familiarity with the project or the local ecology necessary to
implement the mitigation measure more effectively than the lead agency.
(g) The proponent agency or other appropriate cooperating agency
will implement mitigations and other conditions established in the EA or
EIS, or commitments made in the FNSI or ROD. Legal documents
implementing the action (such as contracts, permits, grants) will
specify mitigation measures to be performed. Penalties against a
contractor for noncompliance may also be specified as appropriate.
Specification of penalties should be fully coordinated with the
appropriate legal advisor.
(h) A monitoring and enforcement program for any mitigation will be
adopted and summarized in the NEPA documentation (see Appendix C of this
part for guidelines on implementing such a program). Whether adoption of
a monitoring and enforcement program is applicable (40 CFR 1505.2(c))
and

[[Page 405]]

whether the specific adopted action requires monitoring (40 CFR 1505.3)
may depend on the following:
(1) A change in environmental conditions or project activities
assumed in the EIS (such that original predictions of the extent of
adverse environmental impacts may be too limited);
(2) The outcome of the mitigation measure is uncertain (for example,
new technology);
(3) Major environmental controversy remains associated with the
selected alternative; or
(4) Failure of a mitigation measure, or other unforeseen
circumstances, could result in a failure to meet achievement of
requirements (such as adverse effects on federal or state listed
endangered or threatened species, important historic or archaeological
sites that are either listed or eligible for nomination to the National
Register of Historic Places, wilderness areas, wild and scenic rivers,
or other public or private protected resources). Proponents must follow
local installation environmental office procedures to coordinate with
appropriate federal, tribal, state, or local agencies responsible for a
particular program to determine what would constitute ``adverse
effects.''
(i) Monitoring is an integral part of any mitigation system.
(1) Enforcement monitoring ensures that mitigation is being
performed as described in the NEPA documentation, mitigation
requirements and penalty clauses are written into any contracts, and
required provisions are enforced. The development of an enforcement
monitoring program is governed by who will actually perform the
mitigation: a contractor, a cooperating agency, or an in-house (Army)
lead agency. Detailed guidance is contained in Appendix C of this part.
The proponent is ultimately responsible for performing any mitigation
activities. All monitoring results will be sent to the installation
Environmental Office; in the case of the Army Reserves, the Regional
Support Commands (RSCs); and, in the case of the National Guard, the
NGB.
(2) Effectiveness monitoring measures the success of the mitigation
effort and/or the environmental effect. While quantitative measurements
are desired, qualitative measures may be required. The objective is to
obtain enough information to judge the effect of the mitigation. In
establishing the monitoring system, the responsible agent should
coordinate the monitoring with the Environmental Office. Specific steps
and guidelines are included in Appendix C of this part.
(j) The monitoring program, in most cases, should be established
well before the action begins, particularly when biological variables
are being measured and investigated. At this stage, any necessary
contracts, funding, and manpower assignments must be initiated.
Technical results from the analysis should be summarized by the
proponent and coordinated with the installation Environmental Office.
Subsequent coordination with the concerned public and other agencies, as
arranged through development of the mitigation plan, will be handled
through the Environmental Office.
(k) If the mitigations are effective, the monitoring should be
continued as long as the mitigations are needed to address impacts of
the initial action. If the mitigations are ineffective, the proponent
and the responsible group should re-examine the mitigation measures, in
consultation with the Environmental Office and appropriate experts, and
resolve the inadequacies of the mitigation or monitoring. Professionals
with specialized and recognized expertise in the topic or issue, as well
as concerned citizens, are essential to the credibility of this review.
If a different program is required, then a new system must be
established. If ineffective mitigations are identified which were
required to reduce impact below significance levels (Sec. 651.35 (g)),
the proponent may be required to publish an NOI and prepare an EIS
(paragraph (c) of this section).
(l) Environmental monitoring report. An environmental monitoring
report is prepared at one or more points after program or action
execution. Its purpose is to determine the accuracy of impact
predictions. It can serve as the basis for adjustments in mitigation
programs and to adjust impact predictions in future projects. Further

[[Page 406]]

guidance and clarification are included in Appendix C of this part.

Sec. 651.16 Cumulative impacts.

(a) NEPA analyses must assess cumulative effects, which are the
impact on the environment resulting from the incremental impact of the
action when added to other past, present, and reasonably foreseeable
future actions. Actions by federal, non-federal agencies, and private
parties must be considered (40 CFR 1508.7).
(b) The scoping process should be used to identify possible
cumulative impacts. The proponent should also contact appropriate off-
post officials, such as tribal, state, county, or local planning
officials, to identify other actions that should be considered in the
cumulative effects analysis.
(c) A suggested cumulative effects approach is as follows:
(1) Identify the boundary of each resource category. Boundaries may
be geographic or temporal. For example, the Air Quality Control Region
(AQCR) might be the appropriate boundary for the air quality analysis,
while a watershed could be the boundary for the water quality analysis.
Depending upon the circumstances, these boundaries could be different
and could extend off the installation.
(2) Describe the threshold level of significance for that resource
category. For example, a violation of air quality standards within the
AQCR would be an appropriate threshold level.
(3) Determine the environmental consequence of the action. The
analysis should identify the cause and effect relationships, determine
the magnitude and significance of cumulative effects, and identify
possible mitigation measures.

Sec. 651.17 Environmental justice.

Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority and Low-Income Populations, 11 February 1994, 3 CFR,
1994 Comp., p. 859) requires the proponent to determine whether the
proposed action will have a disproportionate impact on minority or low-
income communities, both off-post and on-post.