[Federal Register Volume 62, Number 11 (Thursday, January 16, 1997)]
[Notices]
[Pages 2375-2382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1071]


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DEPARTMENT OF THE INTERIOR


National Environmental Policy Act Revised Implementing Procedures

AGENCY: Department of the Interior.

ACTION: Notice of Final Revised Procedures for the Fish and Wildlife 
Service (Service).

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SUMMARY: This notice announces final revised procedures for 
implementing the National Environmental Policy Act (NEPA) for actions 
implemented by the Fish and Wildlife Service in Appendix 1 in the 
Department of the Interior's (Departmental) Manual (516 DM 6). The 
revisions update the agency's procedures, originally published in 1984, 
based on changing trends, laws, and consideration of public comments. 
Most importantly, the revisions reflect new initiatives and 
Congressional mandates for the Service, particularly involving new 
authorities for land acquisition activities, expansion of grant 
programs and other private land activities, and increased Endangered 
Species Act (ESA) permit and recovery activities. The revisions promote 
cooperating agency arrangements with other Federal agencies; early 
coordination techniques for streamlining the NEPA process with other 
Federal agencies, Tribes, the States, and the private sector; and 
integrating the NEPA process with other environmental laws and 
executive orders.

EFFECTIVE DATE: January 16, 1997.

FOR FURTHER INFORMATION CONTACT: Don Peterson, Environmental 
Coordinator, Fish and Wildlife Service, at (703) 358-2183.

SUPPLEMENTARY INFORMATION: The Service's existing procedures for 
implementing NEPA with regard to actions proposed to be carried out by 
the Service appear in Appendix 1 to Chapter 6, Part 516, of the 
Departmental Manual (516 DM 6, Appendix 1). These procedures are 
consistent with the Council on Environmental Quality's (CEQ) 
Regulations for Implementing the Procedural Provisions of NEPA 
(Regulations). These procedures (Appendix 1) were previously published 
in the Federal Register on July 1, 1982 (47 FR 28841), and were 
incorporated into the Departmental Manual on April 30, 1984. Proposed 
revised procedures were published in the Federal Register on May 1, 
1996 (61 FR 19308), for 45-day public review. The comment period closed 
June 17, 1996.
    The final revisions update organizational changes in the Service 
(section 1.1); provide general guidance for NEPA compliance for Service 
activities (section 1.2); update guidance to State, local, and private 
applicants for permits and Federal assistance provided through Service-
administered programs (section 1.3); update and expand the categorical 
exclusions to reflect increased responsibilities, including the 
implementation of several new programs (section 1.4); add a new section 
that identifies Service actions normally requiring an environmental 
assessment (EA) (section 1.5); and revise the list of major actions 
normally requiring the development of an environmental impact statement 
(EIS) (section 1.6). The Appendix must be read in conjunction with the 
Department's NEPA procedures (516 DM 1-6) and CEQ's Regulations (40 CFR 
1500-1508). The Department's overall NEPA procedures were published in 
the Federal Register on April 23, 1980 (45 FR 27541), and were revised 
in 49 FR 21437, on May 21, 1984.

RESPONSE TO COMMENTS: A total of eight responses were received during 
the public comment period. As a result of

[[Page 2376]]

these comments and other internal Service input, several technical 
changes were made to refine the final revised procedures. The following 
is the Service's response to substantive comments.

Streamlining, Increased Inter-Agency Cooperation, and Early 
Coordination To Resolve Issues and To Integrate NEPA are Supported

    Many commenters supported the changes, particularly those efforts 
to integrate Service programs, such as integrating the section 
10(a)(1)(B) incidental take process, with NEPA. We are also encouraged 
by widespread support for increasing Service involvement in cooperative 
efforts with other agencies and for promoting early coordination with 
Federal agencies and Tribal, State, and local governments. Additional 
language was added to section 1.2 to further encourage cooperative and 
early coordination efforts.

There Should be Consistency Between the Service and the National 
Marine Fisheries Service in Developing NEPA Procedures for 
Implementing The Endangered Species Act

    One commenter stated that there should be consistency between the 
Service and the National Marine Fisheries Service (NMFS) in developing 
NEPA procedures for implementing the provisions of ESA. The Service and 
NMFS share in the responsibility of implementing many of the provisions 
of ESA. In that regard, the Service and NMFS are working together, to 
the extent practicable, given different agency missions and objectives, 
to seek consistency in applying NEPA to ESA activities.

An EA Must Be Prepared Prior to Finalizing the Revisions

    One commenter stated that the Service must prepare an EA prior to 
finalizing these procedural changes. The final NEPA procedures are 
considered categorically excluded under an existing Departmental 
categorical exclusion (516 DM 2, Appendix 1.10), which applies to 
procedures where the environmental effects are too broad, speculative, 
or conjectural to lend themselves to meaningful analysis. Individual 
Service actions are subject later to the NEPA process, pursuant to 
these procedures, either collectively or on a case-by-case basis.

Regional Directors Should Be Responsible for Contacting State, 
Tribal, and Local Governments When Initiating an Action

    One commenter stated that language should be added to section 1.1E 
to require each Regional Director to be responsible for contacting 
State, Tribal, and local governments when initiating an action. 
Numerous Service guidance documents (e.g., 30 AM 3) already require the 
Service to coordinate with the effected public when the Service 
proposes actions requiring an EA or EIS. However, to strengthen this 
important requirement of the CEQ Regulations, additional language has 
been added to section 1.1E.

Executive Order 12996 on ``Management and General Public use of the 
National Wildlife Refuge System'' Should be Referenced in the 
Procedures

    One commenter stated that the recently published Executive Order 
12996, signed March 25, 1996, entitled ``Management and General Public 
Use of the National Wildlife Refuge System'' should be cited in this 
section. We concur and have added appropriate language to section 
1.3A(2).

The NEPA Procedures are Confusing as to Whether they Apply to 
Service Actions or to the Service Review of Other Agency Activities

    One commenter stated that the Service's revised NEPA procedures, 
particularly section 1.3B, are confusing as to whether they apply to 
Service actions or to the review of other Federal agency activities. We 
agree that the revised procedures are not clear on this point. These 
procedures apply to Service actions only, including, but not limited 
to, proposed construction, changes in land or human use, issuance of 
grants, issuance of permits, etc. Section 1.3 provides guidance to 
permittees who receive permits, grants, or technical assistance on how 
to assist the Service meet its requirements under NEPA, other Federal 
laws, and the executive orders. To clarify these procedures, minor 
language changes have been made in sections 1.2 and 1.3, including the 
deletion of section 1.3B, which primarily deals with the review of 
other agency environmental documents.

Terminology to Define Categorical Exclusions is Vague and Undefined 
and Could Result in Avoiding EAs and EISs

    Several commenters suggested that the Service's use of terminology 
such as ``no or minor change'', ``negligible environmental 
disturbance'', and ``suitable habitat'', for example, for the 
categorical exclusions (section 1.4), should be further defined. 
Although the use of this terminology may at times seem vague, to define 
limits such as the size of the structure, extent of acreage involved, 
number of trees removed, etc., is generally not useful as a NEPA 
trigger. Predetermined limits of physical factors often have little 
relationship to the actual impact of the action. For example, a 
proposal to acquire a 1,000-acre parcel from a willing seller as an 
addition to a national wildlife refuge with little or no changes in 
management may be categorically excluded because no change in the 
environmental conditions is proposed or would occur; whereas, the 
acquisition of a 1,000-acre in-holding which could terminate a popular, 
locally-significant recreational use, would likely require the 
preparation of an EA or EIS. Under the CEQ Regulations, it is the level 
of impact or an established need to determine the level of impact that 
triggers the preparation of an EA or EIS. In other words, Service 
managers make NEPA decision based on the level of anticipated impact, 
or uncertainty of the impact of the action, not merely on the physical 
size of the action. Service decision makers are given a reasonable 
amount of flexibility to make these decisions based on their 
consideration of relevant biophysical factors that could result in 
anticipated or possible impacts. General guidance is provided in the 
Departmental NEPA procedures (516 DM 2, Appendix 2) to help Service 
decisionmakers determine when exceptions to a normally categorically 
excluded action could occur, thus requiring the preparation of an EA or 
EIS. Service guidance is also provided in 30 AM 3.9. The Service will 
continue to rely on this guidance and process to ensure proper 
compliance with NEPA, consistent with CEQ's Regulations.

The Service is Categorically Excluding Actions That may Require the 
Preparation of an EA or EIS

    Several commenters were concerned that when impacts of actions, 
normally categorically excluded, are substantial, the Service would not 
prepare an EA or EIS (section 1.4). Commenters mentioned such actions 
as the construction of new structures or improvements, section 10 
permits, land acquisition, and fire management. An important factor for 
determining when an action can fit an established categorically 
exclusion is whether the action could have a significantly impact, 
either individually or cumulatively. Departmental procedures (preamble 
to section 1.4) clearly state that if there is an exception to the 
categorically

[[Page 2377]]

exclusion, an EA or EIS must be prepared. The Departmental procedures 
state that categorically exclusions are not the equivalent of statutory 
exemptions. Exceptions to the categorical exclusions are found in the 
Departmental Manual (516 DM 2, Appendix 2). In the past, environmental 
documents have been prepared for the construction of new or improved 
structures and for fire-related activities. These procedures continue 
to require the preparation of an EA or EIS, when required. To ensure 
coordination, compliance, and consistency with other affected Federal 
agencies and State, Tribal, and local governments, language to this 
affect has been inserted at the beginning of section 1.4B.

The Service has no Mechanisms to Assess the Cumulative Impacts of 
its Actions

    Several commenters stated that the Service has not mechanism to 
assess cumulative impacts of categorically excluded actions (section 
1.4), such as multiple minor modifications to existing land use as a 
result of land acquisition, section 10(a)(1)(B) incidental take permits 
under ESA, listings, designation of critical habitats, or recovery 
plans and actions. For land acquisition actions, categorically excluded 
activities must meet the three criteria set forth in section 1.4A(4). 
In most cases, the land acquisition action covers the administrative 
action of transferring title from an owner to the Service. Specific 
guidance on land acquisition and the application of NEPA to land 
acquisition actions is found Service guidance (341 FW 2). The land 
acquisition planning process does not, nor is it intended to, fully 
address the impacts of future management decisions for refuge. The 
Service believes that aggregate land acquisition actions, per se, when 
executed under the Service's current policies and guidelines, are not 
causing significant impacts. The future development of refuge 
comprehensive management plans and any step-down management plans, 
however, are subject to NEPA compliance. The NEPA documents prepared 
pursuant to these actions are to address all relevant impacts, 
including cumulative impacts associated with the proposed management of 
the lands and waters. Specific guidance regarding the development of 
these plans and the application of NEPA to the development of 
management plans is found in other Service guidance (602 FW 1-3).
    One commenter stated that the number of habitat conservation plans 
(HCP) prepared pursuant to section 10(a)(1)(B) of the ESA contradicts 
the Service's assertion that the impacts of such activities would be 
minor or negligible because of the total number of permits issued by 
the Service. The commenter combined all HCPs into a single action that 
was considered to be inevitably ``significant.'' It was also implied 
that these permits are being issued without reference to any legal or 
biological standards that mitigate their effects. None of these 
assertions are true. Each permit application is evaluated to determine 
the effect on individual species or groups of species and the habitat 
on which they depend. Mitigation measures are then incorporated into 
the HCP and permit, as appropriate, to ensure that there is not adverse 
effect on the species. In some cases, the permit conditions may result 
in enhancing the species or its habitat. The cumulative impacts from 
categorically excluded low-effect HCPs are considered when the Service 
performs internal section 7 (ESA) consultation on the proposed action, 
pursuant to 50 CFR 402. Under section 7, the cumulative impacts 
analysis includes the effects of future State, Tribal, local, or 
private actions that are reasonably certain to occur in the action 
area. Past activities that may affect the environmental baseline are 
also considered. This process will be described in the final Section 7 
Handbook and will be referenced in the final Section 10 Handbook, both 
to be released in the near future. We believe this process is adequate 
for ensuring the consideration of potential cumulative impacts of 
multiple low-effect HCPs within the same geographic area.
    Regarding listing actions, CEQ has determined that these actions 
may be exempt from the requirements of NEPA, including an assessment of 
cumulative impacts. This assessment is based, in part, on the ESA 
amendments of 1982, which clearly restrict the information upon which 
the Secretary of the Interior may make listing decisions. Only 
scientific, biological criteria can be considered. The Service 
published this finding in the Federal Register on October 1, 1984 (49 
FR 38908).
    Regarding the cumulative impacts of the designation of critical 
habitat and the development of recovery plans, the Service believes 
that these activities do not constitute a proposal under NEPA and, 
therefore, do not warrant the preparation of an EA or EIS, including an 
evaluation of cumulative impacts. Implementation of recovery actions, 
however, is subject to NEPA, including the consideration of cumulative 
impacts, as appropriate. Refer to other responses below.

The use of Categorical Exclusions Effectively Precludes Public 
Involvement in Service Decisions

    One commenter stated that categorical exclusions (section 1.4) 
effectively preclude public involvement in Service decisions. The CEQ 
Regulations clearly focus on those actions with significant impacts on 
the quality of the human environment or on those actions whereby such a 
determination must be determined (i.e., the EA), from which a better 
environmental decision can be encouraged. Categorical exclusions are 
categories of similar actions identified by agencies that normally do 
not require the preparation of an EA or EIS because the actions do not 
individually or cumulatively have a significant effect on the human 
environment (40 CFR 1508.4). A major purpose of categorical exclusions 
is to preclude such actions from undergoing detailed NEPA examinations 
or public review. However, this does not preclude the Service from 
involving the affected public in the planning and implementation of 
such decision. In some cases, it is mandatory, such as for recovery 
plan development. In other cases, the Service routinely includes the 
affected public in decisions, such as land acquisition actions, and 
issuance of special use permits, where the actions are normally 
categorically excluded.

At a Minimum, an EA Should be Prepared for Land Acquisition Actions

    One commenter stated that, at a minimum, the Service should prepare 
an EA for all land acquisitions in cooperation with State, Tribal, and 
local governments [section 1.4A(4)]. All land acquisition proposals for 
the establishment or major expansion of national wildlife refuges are 
completed with the Service's full consideration of NEPA during the 
detailed pre-acquisition planning phase of a proposal. At that time, 
the Service considers the environmental impacts of the acquisition of 
lands within a proposed acquisition boundary. Proposals for the 
establishment of refuges involve appropriate coordination with Federal 
agencies and affected State, Tribal, and local governments. Either an 
EA or EIS is normally prepared, depending on the significance of 
impacts and/or controversy surrounding the proposal (refer to section 
1.5A). The categorical exclusion for land acquisition in section 
1.4A(4) is utilized for land acquisition within approved established 
refuges or for minor adjustments to the acquisition boundary of an 
existing refuge. Specific guidance on land acquisition and the

[[Page 2378]]

application of the NEPA process is found in Service guidance (341 FW 
2).

Concerns Were Raised Regarding the Categorical Exclusion for the 
Reintroduction of Native, Formerly Native, or Established Species

    Several commenters raised concerns regarding this categorical 
exclusion [section 1.4B(6)]. These concerns are fueled, in part, by 
controversy over the reintroductions of the gray wolf, proposed 
reintroduction of the Mexican wolf, and debate over the reintroduction 
of hatchery-raised fish. One commenter recommended that the categorical 
exclusion be deleted.
    The Service is involved in numerous reintroductions through various 
grants programs (e.g., Federal Aid in Fish and Wildlife Restoration 
Acts), recovery actions under ESA, and the Service's Fisheries Program. 
The categorical exclusion for this activity applies only when there are 
no significant impacts associated with the proposal. The categorical 
exclusions must be read in context with the Departmental Manual, 516 DM 
2, Appendix 2, which identifies exceptions to the categorical 
exclusions. When an exception applies, such as an action with highly 
controversial environmental effects, an EA or EIS must be prepared. In 
a number of recent reintroductions, such as the reintroduction of the 
gray wolf in Yellowstone National Park and central Idaho, and the 
proposed reintroduction of the Mexican Wolf in Arizona and New Mexico, 
an EIS was prepared due to the controversy over environmental effects 
associated with the proposals.
    Several commenters raised specific concerns about the use of this 
categorical exclusion for the release of hatchery propagated fish. The 
Service's National Fish Hatchery System produces various species of 
fish for a variety of purposes. Numerous legislative authorities, such 
as the Atlantic Striped Bass Conservation Act, Great Lakes Fishery Act, 
New England Fishery Resources Restoration Act, Sikes Act, and the Water 
Resources Development Act of 1976, to name a few, direct the Service's 
Fisheries Program. While it is true that fishery managers in the past 
sometimes favored using Federal hatcheries to produce and stock non-
native fishes, these kinds of activities are very limited today. The 
Service's Fisheries Program focuses its resources on restoring depleted 
native populations of fishes, recovering threatened and endangered 
fishes, and maintaining the health and abundance of inter 
jurisdictional fish populations. The service uses non-native fish 
primarily in waterways grossly altered by water projects and in 
artificial impoundments and sterile waterbodies. Any reintroduction 
activity covered under this categorical exclusion, whether it involves 
native or non-native species, will be subject to the exceptions 
procedures in the Departmental Manual (516 DM 2, Appendix 2). 
Additional language has been added to this categorical exclusion to 
clarify that such reintroductions can be categorically excluded only 
when no or negligible environmental disturbances are anticipated.

The categorical Exclusions are attempting to Bypass the Assessment 
of Impacts for the Issuance of Permits

    Several commenters suggest that the Service, through its 
categorical exclusions [sections 1.4C(1) and (2)], is attempting to 
bypass the assessment of impacts from the issuance of permits for 
endangered and threatened species, species listed under the Convention 
on International Trade on Endangered Species of Wild Fauna and Flora 
(CITES), marine mammals, exotic birds, migratory birds, eagles, and 
injurious wildlife.
    Although some ESA permits can be issued which involve the killing, 
removal from natural habitat, or permanent impairment of reproductive 
capability of species under this revised categorical exclusion, the 
permit can be issued only if it poses no jeopardy to the species. To 
ensure this standard, permits include appropriate minimization and 
mitigation actions in the conditions of the permit. If these actions 
are not feasible or the conditions are not acceptable to the applicant, 
the permit application will be denied.
    Under the categorical exclusion 1.4C(1) and (2), section 
10(a)(1)(B) incidental takes permits and the preparation of 
accompanying HCPs can now be categorically excluded if the expected 
impacts are minor or negligible. This standard for ``low-effect'' HCPs 
was not included under the previous categorical exclusions, where any 
permit, for example, involving incidental take, required the 
preparation of an EA or EIS. The previous language was a far more 
rigorous standard than required under NEPA. For example, under the 
previous procedures, incidental take of a listed species would require 
the preparation of an EA or EIS even when the service established that 
there was only a minor or negligible effect. The revised language is 
consistent with NEPA in that the level of impact is the trigger for 
determining when to prepare an EA or EIS, thus allowing the 
implementation of a more flexible, efficient section 10(a)(1)(B) permit 
program. Additional Service guidance on how to determine when a permit 
proposal will be ``low-effect'' will be included in the final Section 
10 Handbook.
    For species listed under CITES, the Wild Bird Conservation Act, and 
the Marine Mammal Protection Act, the Service carefully reviews 
possible effects of the proposed activity on the wildlife before 
issuing a permit. For species listed as injurious wildlife, the Service 
reviews whether provisions are in place to ensure that wildlife cannot 
escape and potentially harm native wildlife. The permit review process 
includes consulting with appropriate State and Federal agencies and 
species experts. The Services makes a decision to issue a permit only 
after issuance criteria are met. These are specific to the provisions 
of the law or treaty. For example, under CITES, the Service's Office of 
Scientific Authority must make a finding that the import or export 
would not be detrimental to the survival of the species. If the Service 
anticipates that a permit may have an incidental environmental impact, 
the Service would require the preparation of an EA or EIS.
    Under the Migratory Bird Treaty Act (MBTA), the Service thoroughly 
reviews and considers anticipated effects on migratory bird populations 
before issuing a permit allowing the take of a protected species. 
Permits are issued at the Regional level pursuant to regulations and 
requirements (50 CFR 210 and are only issued after careful review by 
the Region's Permit Review Committee. Like the MBTA, the Bald and 
Golden Eagle Protection Act (BGEPA) prohibits the taking of bald and 
golden eagles, except as otherwise permitted pursuant to regulations 
(50 CFR 22.21 through 22.25). Under MBTA, BGEPA, and applicable 
regulations, no permits can be issued for actions that would cause harm 
to the species. If there are incidental impacts as a result of the 
issuance of the proposed issuance of a permit that are or may be 
significant, such permits would require the preparation of an EA or 
EIS.
    If any permit action, that normally would be categorically 
excluded, meets one or more of the exceptions to the categorical 
exclusion in 516 DM 2, Appendix 2, an EA or EIS is required. This 
requirement is to ensure that proposals with significant impacts or 
with impacts that may be significant undergo the NEPA documentation and 
decisionmaking process.

[[Page 2379]]

The Habitat Conservation Plan Process Serves Essentially the Same 
Purpose as the NEPA Process

    One commenter suggested that the HCP process, authorized under 
section 10(a)(1)(B) of the ESA, serves essentially the same purpose as 
the NEPA analysis in an EA or EIS. We agree that there are some 
similarities in the content of the HCP and the NEPA document, such as 
the identification of alternative, evaluation of impacts, and public 
review. However, some of these features can differ substantially, 
depending on the proposal. For example, section 10(a)(1)(B) and 
subsequent Service guidance limits the analysis of impacts in the HCP 
to affected listed and proposed species by minimizing and mitigating 
the incidental take of a listed species. The purpose of the HCP process 
is to provide an incidental take permit to the applicant that 
authorizes the incidental take of federally listed species in the 
context of an HCP. The HCP specifies the impacts that will likely 
result from the incidental taking, what steps the applicant will take 
to minimize and mitigate such impacts, what alternative actions are not 
being utilized, and such other measures as may be required by the 
Service.
    When considering the NEPA analysis as it relates to an incidental 
take permit and the HCP, it is important to be precise about the nature 
of the underlying action. The scope of the NEPA analysis covers the 
direct, indirect, and cumulative effects of the proposed incidental 
take and the mitigation and minimization measures proposed form the 
implementation of the HCP. The specific scope of the NEPA analysis will 
vary depending on the nature of the scope of activities described in 
the HCP. In some cases, the anticipated environmental effects in the 
NEPA documents that address the HCP may be confined to effects on 
endangered species and other wildlife and plants, simply because there 
are no other important effects. In many cases, the NEPA analysis will 
focus on the effects of the minimization and mitigation actions on 
other wildlife and plants and will examine any alternatives or 
conservation strategies that might not otherwise have been considered. 
In other cases, the minimization and mitigation activities proposed in 
the HCP may affect a wider range of impacts analyzed under NEPA, such 
as cultural resources and water use. It is important to keep in mind, 
however, that the NEPA analysis for an HCP should be directed towards 
analyzing direct, indirect, and cumulative effects that would be caused 
by the approval of the HCP, that are reasonably foreseeable, and that 
are potentially significant.

Refuge Actions Determined to be Compatible Would not be Subject to 
Qualitative and Quantitative Evaluations

    One commenter suggests that if the Service made a determination of 
compatibility, that would be sufficient to qualify the issuance or 
reissuance of refuge special use permit as a categorical exclusion, 
thus avoiding any qualitative or quantitative assessment of impacts. 
The categorical exclusion 1.4C(5) requires that three criteria be met 
before a Refuge action requiring the issuance or reissuance of a permit 
can apply: the use must be compatible, must contribute to the purposes 
of the refuge, and result in no or negligible anticipated environmental 
disturbances. The compatibility criteria is one of three that must be 
met before this categorical exclusion can be used. This categorical 
exclusion cannot be used unless it meets the requirements of both the 
National Wildlife Refuge System Administration Act of 1966, as amended, 
and NEPA (40 CFR 1508.4).

An EA or EIS Should be Prepared for the Preparation of Recovery 
Plans

    One commenter stated that the preparation of recovery plans should 
require the preparation of an EA or EIS (section 1.4D). Another 
commenter stated that recovery plans should not be categorically 
excluded because the issue is currently in litigation. However, several 
commenters also stated that recovery plans are not ``action'' 
documents, and therefore do not constitute a Federal action under NEPA. 
The Service continues to consider recovery plans categorically excluded 
under section 1.4B(8), as well as under 516 DM 2, Appendix 1.10. 
Recovery plans are considered to be advisory in nature and provide 
technical assistance. These plans merely provide planning strategies 
and identify possible recovery actions and/or tasks that can be 
implemented at a later time to help recover the species. The recovery 
tasks identified in the plan are discretionary. The plans do not 
authorize, fund, or implement a specific task. Through section 1003 of 
the ESA amendments of 1988, the Secretary of the Interior provides the 
public an opportunity to review and comment on draft recovery plans. 
The NEPA process will be applied at the time specific tasks are 
proposed to be implemented. The relationship of NEPA to recovery 
planning will be clarified in revisions to the Service Recovery Manual.

The Service Should Maintain the Flexibility To Issue EAs and FONSIs 
Without Public Review

    One commenter stated that the language in section 1.5C indicates 
that public review is required for an EA and that this is inconsistent 
with CEQ's Regulations, which require review of the FONSI only when an 
action is similar to one which normally requires an EIS or when the 
nature of the action is without precedent [40 CFR 1501.4(e)(2)]. We 
agree that this language is inconsistent and it is also somewhat 
confusing. The language in section 1.5C has been revised to indicate 
that it is not the EA/FONSI, but the notice of intent to prepare an EIS 
that is to be made available to the affected public when an EA 
determines that the proposal is a major Federal action significantly 
affecting the quality of the human environment.
    Although CEQ's Regulations do not normally require public review of 
EAs, such review is encouraged. The Service routinely involves the 
public in the review of EAs in conjunction with HCPs. The ESA requires 
the Service to publish a Notice, called the Notice of Receipt, when a 
HCP permit application is received. The final Section 10 Handbook will 
provide guidance encouraging Service personnel to publish a joint 
notification of the permit application, HCP, and the EA for public 
review. In practice, the Service normally provides the public an 
opportunity to review the EA along with the HCP to facilitate the 
planning and implementation of the incidental take permit.

Designation of Critical Habitat Should Require the Preparation of 
an EIS

    One commenter stated that the designation of critical habitat 
should require the preparation of an EIS. The Department's NEPA 
procedures do not specifically state that the designation of critical 
habitat is categorically excluded. The Service has maintained that 
these designations are exempt from NEPA and therefore, do not require 
the preparation of an EA or EIS in conjunction with regulations adopted 
pursuant to section 4(a) of the ESA, as amended. A notice outlining the 
Service's reason was published in the Federal Register on October 25, 
1983 (48 FR 49244). As the commenter notes, two Federal Circuit Courts 
have disagreed on this issue (9th and 10th Circuits). Pending 
resolution of this issue by the Courts, the Service will not prepare 
environmental documents in the 9th Circuit or in other parts of the 
United States, consistent with our current position, but the

[[Page 2380]]

Service will prepare EAs for any designations proposed in areas subject 
to the 10th Circuit. This admittedly inconsistent approach to the 
application of NEPA for the designation of critical habitat will likely 
continue until resolved by the Courts.

Departmental Manual

516 DM 6 Appendix 1

Fish and Wildlife Service

1.1  NEPA Responsibility

    A. The Director is responsible for NEPA compliance for Fish and 
Wildlife Service (Service) activities, including approving 
recommendations to the Assistant Secretary (FW) for proposed referrals 
to the Council on Environmental Quality (CEQ) of other agency actions 
under 40 CFR 1504.
    B. Each Assistant Director (Refuges and Wildlife, Fisheries, 
International Affairs, External Affairs, and Ecological Services) is 
responsible for general guidance and compliance in their respective 
areas of responsibility.
    C. The Assistant Director for Ecological Services has been 
delegated oversight responsibility for Service NEPA compliance.
    D. The Division of Habitat Conservation (DHC--Washington), which 
reports to the Assistant Director for Ecological Services, is 
responsible for internal control of the environmental review and 
analysis of documents prepared by other agencies and environmental 
statements prepared by the various Service Divisions. This office is 
also responsible for preparing Service NEPA procedures, guidelines, and 
instructions, and for supplying technical assistance and specialized 
training in NEPA compliance, in cooperation with the Service Office of 
Training and Education, to Service entities. The Washington Office 
Environmental Coordinator, who reports to DHC, provides staff 
assistance on NEPA matters to the Director, Assistant Directors, and 
their divisions and offices, and serves as the Service NEPA liaison to 
the CEQ, the Department's Office of Environmental Policy and Compliance 
(OEPC), and NEPA liaisons in other Federal agencies, in accordance with 
516 DM 6.2.
    E. Each Regional Director is responsible for NEPA compliance in 
his/her area of responsibility. The Regional Director should ensure 
that Service decisionmakers in his/her area of responsibility contact 
affected Federal agencies and State, Tribal and local governments when 
initiating an action subject to an EA or EIS. An individual in each 
Regional Office, named by title and reporting to the Assistant Regional 
Director for Ecological Services, other appropriate Assistant Regional 
Director, or the Regional Director, will have NEPA coordination duties 
with all program areas at the Regional level similar to those of the 
Washington Office Environmental Coordinator, in accordance with 516 DM 
6.2.

1.2  General Service Guidance

    Service guidance on internal NEPA matters is found in 30 AM 2-3 
(organizational structure and internal NEPA compliance), 550 FW1-3 (in 
preparation), 550 FW 3 (documenting and implementing Service decisions 
on Service actions), and 550 FW 1-2 (replacement to 30 AM 2-3 in 
preparation). These guidance documents encourage Service participation 
as a cooperating agency with other Federal agencies, encourage early 
coordination with other agencies and the public to resolve issues in a 
timely manner, and provide techniques for streamlining the NEPA process 
and integrating the NEPA process with other Service programs, 
environmental laws, and executive orders. Some Service programs have 
additional NEPA compliance information related to specific program 
planning and decisionmaking activities. Service program guidance on 
NEPA matters must be consistent with the Service Manual on NEPA 
guidance and Departmental NEPA procedures. For example, additional NEPA 
guidance is found in the Federal Aid Handbook (521-523 FW), refuge 
planning guidance (602 FW 1-3), Handbook for Habitat Conservation 
Planning and Incidental Take Processing, and North American Wetlands 
Conservation Act Grant Application Instructions.

1.3  Guidance to Applicants

    A. Service Permits. The Service has responsibility for issuing 
permits to Federal and State agencies and private parties for actions 
which would involve certain wildlife species and/or use of Service-
administered lands. When applicable, the Service may require permit 
applicants to provide additional information on the proposal and on its 
environmental effects as may be necessary to satisfy the Service's 
requirements to comply with NEPA, other Federal laws, and executive 
orders.
    (1) Permits for the Taking, Possession, Transportation, Sale, 
Purchase, Barter, Exportation, or Importation of Certain Wildlife 
Species. The Code of Federal Regulations, Part 13, Title 50 (50 CFR 13) 
contains regulations for General Permit Procedures. Section 13.3 lists 
types of permits and the pertinent Parts of 50 CFR. These include: 
Importation, Exportation, and Transportation of Wildlife (Part 14); 
Exotic Wild Bird Conservation (Part 15); Injurious Wildlife (Part 16); 
Endangered and Threatened Wildlife and Plants (Part 17); Marine Mammals 
(Part 18); Migratory Bird Hunting (Part 20); Migratory Bird Permits 
(Part 21); Eagle Permits (Part 22); Endangered Species Convention (Part 
23); and Importation and Exportation of Plants (Part 24). Potential 
permit applicants should request information from the appropriate 
Regional Director, or the Office of Management Authority, U.S. Fish and 
Wildlife Service, Department of the Interior, Washington, DC 20240, as 
outlined in the applicable regulation.
    (2) Federal Lands Managed by the Service. Service lands are 
administered under the National Wildlife Refuge System Administration 
Act of 1966 (16 U.S.C. 668dd-668ee), the Refuge Recreation Act of 1962 
(16 U.S.C. 460k-460k-4), and the Alaska National Interest Lands 
Conservation Act of 1980 (16 U.S.C. 410hh-3233, 43 U.S.C. 1602-1784). 
inherent in these acts is the requirement that only those uses that are 
compatible with the purposes of the refuge system unit may be allowed 
on Service lands. The Service also complies with Executive Order 12996, 
signed March 25, 1996, entitled ``Management and General Public Use of 
the National Wildlife Refuge System.'' This Executive Order identifies 
general public uses that will be given priority consideration in refuge 
planning and management, subject to meeting the compatibility 
requirement and if adequate funding is available to administer the use. 
Detailed procedures regarding comprehensive management planning and 
integration with NEPA are found in the Service Manual (602 FW 1-3). 
Reference to this and other National Wildlife Refuge System 
requirements are found in the Code of Federal Regulations, Title 50 
parts 25-29, 31-36, 60, and 70-71. Under these regulations, these 
protections are extended to all Service-administered lands, including 
the National Fish Hatchery System.
    B. Federal Assistance to States, Local or Private Entities.
    (1) Federal Assistance Programs. The Service administers financial 
assistance (grants and/or cooperative agreements) to State, local, and 
private entities under the Anadromous Fish Conservation Act (CFDA 
#15.600); North American Wetlands Conservation Act; Fish and Wildlife 
Act of 1956; Migratory Bird Conservation Act; Food Security Act of

[[Page 2381]]

1985; Food, Agriculture, Conservation and Trade Act of 1990; 
Partnerships for Wildlife Act of 1992; and Consolidated Farm and Rural 
Development Act. The Service administers financial assistance to States 
under the Sport Fish Restoration Act (CFDA #15.605), Wildlife 
Restoration Act (CFDA #15.611), Endangered Species Act (CFDA #15.612 
and 15.615), Coastal Wetlands Planning Protection and Restoration Act 
(CFDA #15.614), and Clean Vessel Act of 1992 (CFDA #15.616).
    (2) Program Information and NEPA Compliance. Information on how 
State, local, and private entities may request funds and assist the 
Service in NEPA compliance relative to the Anadromous Fish Conservation 
Act may be obtained through the Division of Fish and Wildlife 
Management Assistance, U.S. Fish and Wildlife Service, Department of 
the Interior, Arlington Square Building, Room 840, Washington, D.C. 
20240. Similar information regarding the North American Wetlands 
Conservation Act may be obtained through the North American Waterfowl 
and Wetlands Office. U.S. Fish and Wildlife Service, Department of the 
Interior, Arlington Square Building, Room 110, Washington, D.C. 20240. 
All other requests for information on how funds may be obtained and 
guidance on how to assist the Service in NEPA compliance may be 
obtained through the Chief, Division of Federal Aid, U.S. Fish and 
Wildlife Service, Department of the Interior, Arlington Square 
Building, Room 140, Washington, D.C. 20240.

1.4  Categorical Exclusions

    Categorical exclusions are classes of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. Categorical exclusions are not the equivalent of statutory 
exemptions. If exceptions to categorical exclusions apply, under 516 DM 
2, Appendix 2 of the Departmental Manual, the departmental categorical 
exclusions cannot be used. In addition to the actions listed in the 
departmental categorical exclusions outlined in Appendix 1 of 516 DM 2, 
the following Service actions are designated categorical exclusions 
unless the action is an exception to the categorical exclusion.
    A. General.
    (1) Changes or amendments to an approved action when such changes 
have no or minor potential environmental impact.
    (2) Personnel training, environmental interpretation, public safety 
efforts, and other educational activities, which do not involve new 
construction or major additions to existing facilities.
    (3) The issuance and modification of procedures, including manuals, 
orders, guidelines, and field instructions, when the impacts are 
limited to administrative effects.
    (4) The acquisition of real property obtained either through 
discretionary acts or when acquired by law, whether by way of 
condemnation, donation, escheat, right-of-entry, escrow, exchange, 
lapses, purchase, or transfer and that will be under the jurisdiction 
or control of the United States. Such acquisition of real property 
shall be in accordance with 602 DM 2 and the Service's procedures, when 
the acquisition is from a willing seller, continuance of or minor 
modification to the existing land use is planned, and the acquisition 
planning process has been performed in coordination with the affected 
public.
    B. Resource Management. Prior to carrying out these actions, the 
Service should coordinate with affected Federal agencies and State, 
Tribal, and local governments.
    (1) Research, inventory, and information collection activities 
directly related to the conservation of fish and wildlife resources 
which involve negligible animal mortality or habitat destruction, no 
introduction of contaminants, or no introduction of organisms not 
indigenous to the affected ecosystem.
    (2) The operation, maintenance, and management of existing 
facilities and routine recurring management activities and 
improvements, including renovations and replacements which result in no 
or only minor changes in the use, and have no or negligible 
environmental effects on-site or in the vicinity of the site.
    (3) The construction of new, or the addition of, small structures 
or improvements, including structures and improvements for the 
restoration of wetland, riparian, instream, or native habitats, which 
result in no or only minor changes in the use of the affected local 
area. The following are examples of activities that may be included.
    i. The installation of fences.
    ii. The construction of small water control structures.
    iii. The planting of seeds or seedlings and other minor 
revegetation actions.
    iv. The construction of small berms or dikes.
    v. The development of limited access for routine maintenance and 
management purposes.
    (4) The use of prescribed burning for habitat improvement purposes, 
when conducted in accordance with local and State ordinances and laws.
    (5) Fire management activities, including prevention and 
restoration measures, when conducted in accordance with departmental 
and Service procedures.
    (6) The reintroduction or supplementation (e.g., stocking) of 
native, formerly native, or established species into suitable habitat 
within their historic or established range, where no or negligible 
environmental disturbances are anticipated.
    (7) Minor changes in the amounts or types of public use on Service 
or State-managed lands, in accordance with existing regulations, 
management plans, and procedures.
    (8) Consultation and technical assistance activities directly 
related to the conservation of fish and wildlife resources.
    (9) Minor changes in existing master plans, comprehensive 
conservation plans, or operations, when no or minor effects are 
anticipated. Examples could include minor changes in the type and 
location of compatible public use activities and land management 
practices.
    (10) The issuance of new or revised site, unit, or activity-
specific management plans for public use, land use, or other management 
activities when only minor changes are planned. Examples could include 
an amended public use plan or fire management plan.
    (11) Natural resource damage assessment restoration plans, prepared 
under sections 107, 111, and 122(j) of the Comprehensive Environmental 
Response Compensation and Liability Act (CERCLA); section 311(f)(4) of 
the Clean Water Act; and the Oil Pollution Act; when only minor or 
negligible change in the use of the affected areas is planned.
    C. Permit and Regulatory Functions.
    (1) The issuance, denial, suspension, and revocation of permits for 
activities involving fish, wildlife, or plants regulated under 50 CFR 
Chapter 1, Subsection B, when such permits cause no or negligible 
environmental disturbance. These permits involve endangered and 
threatened species, species listed under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES), marine mammals, exotic birds, migratory birds, eagles, and 
injurious wildlife.
    (2) The issuance of ESA section 10(a)(1)(B) ``low-effect'' 
incidental take permits that, individually or cumulatively, have a 
minor or negligible

[[Page 2382]]

effect on the species covered in the habitat conservation plan.
    (3) The issuance of special regulations for public use of Service-
managed land, which maintain essentially the permitted level of use and 
do not continue a level of use that has resulted in adverse 
environmental effects.
    (4) The issuance or reissuance of permits for limited additional 
use of an existing right-of-way for underground or above ground power, 
telephone, or pipelines, where no new structures (i.e., facilities) or 
major improvement to those facilities are required; and for permitting 
a new right-of-way, where no or negligible environmental disturbances 
are anticipated.
    (5) The issuance or reissuance of special use permits for the 
administration of specialized uses, including agricultural uses, or 
other economic uses for management purposes, when such uses are 
compatible, contribute to the purposes of the refuge system unit, and 
result in no or negligible environmental effects.
    (6) The denial of special use permit applications, either initially 
or when permits are reviewed for renewal, when the proposed action is 
determined not compatible with the purposes of the refuge system unit.
    (7) Activities directly related to the enforcement of fish and 
wildlife laws, not included in 516 DM 2, Appendix 1.4. These activities 
include:
    (a) Assessment of civil penalties.
    (b) Forfeiture of property seized or subject to forfeiture.
    (C) The issuance or reissuance of rules, procedures, standards, and 
permits for the designation of ports, inspection, clearance, marking, 
and license requirements pertaining to wildlife and wildlife products, 
and for the humane and healthful transportation of wildlife.
    (8) Actions where the Service has concurrence or coapproval with 
another agency and the action is a categorical exclusion for that 
agency. This would normally involve one Federal action or connected 
actions where the Service is a cooperating agency.
    D. Recovery Plans.
    Issuance of recovery plans under section 4(f) of the ESA.
    E. Financial Assistance.
    (1) State, local, or private financial assistance (grants and/or 
cooperative agreements), including State planning grants and private 
land restorations, where the environmental effects are minor or 
negligible.
    (2) Grants for categorically excluded actions in paragraphs A, B, 
and C, above; and categorically excluded actions in Appendix 1 of 516 
DM 2.

1.5  Actions Normally Requiring an EA

    A. Proposals to establish most new refuges and fish hatcheries; and 
most additions and rehabilitations to existing installations.
    B. Any habitat conservation plan that does not meet the definition 
of ``low-effect'' in the Section 10(a)(1)(B) Handbook.
    C. If, for any of the above proposals, the EA determines that the 
proposal is a major Federal action significantly affecting the quality 
of the human environment, an EIS will be prepared. The determination to 
prepare an EIS will be made by a notice of intent in the Federal 
Register and by other appropriate means to notify the affected public.

1.6  Major Actions Normally Requiring an EIS

    A. The following Service proposals, when determined to be a major 
Federal action significantly affecting the quality of the human 
environment, will normally require the preparation of an EIS.
    (1) Major proposals establishing new refuge system units, fish 
hatcheries, or major additions to existing installations, which involve 
substantive conflicts over existing State and local land use, 
significant controversy over the environmental effects of the proposal, 
or the remediation of major on-site sources of contamination.
    (2) Master or comprehensive conservation plans for major new 
installations, or for established installations, where major new 
developments or substantial changes in management practices are 
proposed.
    B. If, for any of the above proposals it is initially determined 
that the proposal is not a major Federal action significantly affecting 
the quality of the human environment, an EA will be prepared and 
handled in accordance with 40 CFR 1501.4(e)(2). If the EA subsequently 
indicates the proposed action will cause significant impacts, an EIS 
will be prepared.

    Dated: January 13, 1997.
Willie Taylor,
Director, Office of Environmental Policy and Compliance, Office of the 
Secretary, U.S. Department of the Interior.
[FR Doc. 97-1071 Filed 11-15-97; 8:45 am]
BILLING CODE 4310-55-M