Environmental Analysis of Army Actions
| Published date | 20 December 2019 |
| Citation | 84 FR 70328 |
| Record Number | 2019-26336 |
| Section | Proposed rules |
| Court | Army Department |
Federal Register, Volume 84 Issue 245 (Friday, December 20, 2019)
[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Proposed Rules]
[Pages 70328-70353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26336]
[[Page 70327]]
Vol. 84
Friday,
No. 245
December 20, 2019
Part III Department of Defense-----------------------------------------------------------------------Department of the Army-----------------------------------------------------------------------32 CFR Part 651Environmental Analysis of Army Actions; Proposed Rule
Federal Register / Vol. 84 , No. 245 / Friday, December 20, 2019 /
Proposed Rules
[[Page 70328]]
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 651
[Docket ID: USA-2019-HQ-0017]
RIN 0702-AB02
Environmental Analysis of Army Actions
AGENCY: Department of the Army, DoD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Army is revising its procedures for
implementing the National Environmental Policy Act of 1969 (NEPA) and
the Council on Environmental Quality (CEQ) NEPA regulations. These
proposed revisions clarify and update the regulation, incorporate
current Army NEPA procedures and practices, and revise and add
categorical exclusions (CXs), reduce paperwork and delays, and promote
better decisions consistent with national environmental policy set
forth in NEPA.
DATES: Consideration will be given to all comments received by February
18, 2020.
ADDRESSES: You may submit comments, identified by 32 CFR part 651,
Docket No. USA-2019-HQ-0017 and/or by Regulatory Information Number
(RIN) 0702-AB02 or by any of the following methods:
[squ] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[squ] Mail: Department of Defense, Office of the Chief Management
Officer, Directorate for Oversight and Compliance, 4800 Mark Center
Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing at
http://www.regulations.gov as they are received without change,
including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: David Guldenzopf, Ph.D., Office of the
Deputy Assistant Secretary of the Army, Environmental, Safety, and
Occupational Health, Director for Environmental Quality, (571) 256-
7822.
SUPPLEMENTARY INFORMATION:
A. Background and Authority for This Rulemaking
This rule is a revision of the Department of the Army procedures at
32 Code of Federal Regulations (CFR) part 651 for implementing the
National Environmental Policy Act of 1969 (NEPA) last revised on March
29, 2002 and the Council on Environmental Quality (CEQ) NEPA
regulations, CFR parts 1500-1508.
NEPA establishes national policy and goals for protection of the
environment. Section 102(2) of NEPA contains certain procedural
requirements for the attainment of these goals. In particular, all
Federal agencies are required to give appropriate consideration to the
environmental effects of their proposed actions in their decision-
making and to prepare detailed environmental statements on
recommendations or reports significantly affecting the quality of the
human environment.
Authorities for this rule are 5 U.S.C. 301, NEPA, and 40 CFR parts
1500-1508. Under 5 U.S.C. 301, the head of a military department may
prescribe regulations for the government of the department, the conduct
of its employees, the distribution and performance of its business, and
the custody, use, and preservation of its records, papers, and
property. NEPA requires Federal agencies to analyze their proposed
actions to determine if they could have significant environmental
effects. The CEQ NEPA implementing regulations (40 CFR parts 1500-1508)
require Federal agencies to adopt supplemental NEPA implementing
procedures, including agency-specific CXs, and to provide opportunity
for public review prior to adoption (40 CFR 1507.3).
B. Process Used by Army in the Development of the Proposed Revisions
The Assistant Secretary of the Army for Installations, Energy and
Environment, as the Army proponent of this regulation, directed the
revision of this part to align the regulation with current Army
practices and procedures, and update CXs.
A subject matter expert team was formed to analyze and contribute
to the development of the revision. The professionals comprising the
team were current Army environmental experts with significant NEPA
planning and compliance experience, including the preparation of
environmental documentation such as CX records of environmental
consideration, environmental assessments (EAs), environmental impact
statements (EISs), findings of no significant impact, and records of
decision. Army subject matter experts were supported by a legal working
group comprised of experienced environmental law attorneys from the
Army's Office of the General Counsel, Office of the Judge Advocate
General, and Command-level Staff Judge Advocates with advanced
education and experience, providing legal and policy advice to Federal
agency decision-makers, managers, and practitioners on environmental
planning and compliance responsibilities.
To determine if changes should be considered for existing CXs and
if new CXs should be considered, Army environmental subject matter
experts reviewed numerous existing NEPA documents to determine classes
of actions which, when implemented, resulted in no significant
individual or cumulative environmental effects. The Army reviewed other
federal agency CXs to identify actions similar to those frequently
carried out by the Army, and evaluated these other agency CXs to
determine classes of actions for which a similar Army CX would be
appropriate. Each CX that currently appears in the existing 32 CFR part
651, in addition to the proposed new CXs, was carefully reviewed in
concept, coverage, applicability, and wording. Each revised and new CX
was cautiously crafted with the goal of balancing increased
administrative efficiency in NEPA compliance while avoiding the
potential for misinterpretations and misapplications of exclusionary
language that could lead to non-compliance with NEPA requirements. The
Army carefully considered the anticipated cumulative impacts of each
proposed new or revised CX, relying upon either the experiences of
other Federal agencies' application of their own CXs, the cumulative
effects analyses contained within the Army's NEPA analyses (both site-
specific/project-level and programmatic), or both. In summary, the Army
developed the proposed new and modified CXs and associated
administrative records to conform to the requirements of NEPA as well
as the Administrative Procedure Act (APA), its implementing
regulations, and the subsequent body of case law pertaining to the
APA's application as it relates to NEPA.
The CEQ was integral in the process to ensure that proposed changes
to the Army's CXs meet NEPA requirements. Army provided the CEQ with
proposed draft changes and justifications for each proposed change to
32 CFR part 651. Many of the changes that the Army is proposing are
administrative in nature to clarify application of a particular CX.
[[Page 70329]]
All changes to the CXs are substantiated within the
``Administrative Record for Revisions to Department of the Army
Categorical Exclusions'', available for review at https://denix.osd.mil/army-32cfr651/.
C. Summary of the Proposed Changes
1. Proposed Revisions Generally
The proposed rule fully revises the Department of the Army NEPA
procedures. The revisions to the proposed regulation include a
reorganization and consolidation of the subparts. The changes were made
to reduce repetitive language, to simplify and streamline the rule, and
to update procedures to align with current Army organization and
policies. The proposed revisions and rationale are provided in Table 1.
Table 1--Proposed Revisions Generally
----------------------------------------------------------------------------------------------------------------
Proposed
Subpart Section subpart Proposed section Rationale
----------------------------------------------------------------------------------------------------------------
A--Introduction................. 651.1 Purpose...... A 651.1 Purpose, Update section title and
Scope, and content, reorganization
Applicability. and reduction of
section paragraphs to
simplify and organize
requirements.
651.2 References... A 651.2 References... Minor updates to
content.
651.3 Explanation A 651.3 Definitions, Update section title and
of abbreviations Terms, and content, addition of
and terms. Abbreviations. section paragraphs
introduce key terms
upfront to eliminate
confusion.
651.4 A 651.5 Army NEPA Reorganization of
Responsibilities. Compliance sections to list
Responsibilities. responsibilities prior
to policy, new section
title, new section
number, and update of
content to incorporate
current Army
organization and
policy.
651.5 Army Policies A 651.4 Army NEPA Reorganization of
Policy. sections and update of
content to incorporate
current Army
organization and
policy.
651.6 NEPA analysis A 651.5 Army NEPA Reorganization of
staffing. Compliance sections to consolidate
Responsibilities. all responsibilities
and update of content
to incorporate current
Army organization and
policy.
651.7 Delegation of A 651.5 Army NEPA Reorganization of
authority for non- Compliance sections to consolidate
acquisition Responsibilities. all responsibilities
systems. into one section and
update of content to
incorporate current
Army organization and
policy.
651.8 Disposition A 651.5 Army NEPA Reorganization of
of final documents. Compliance sections to consolidate
Responsibilities. all responsibilities
into one section to
incorporate current
Army organization and
policy
B--NEPA and the Decision Process 651.9 Introduction. .......... Removed............ Language/section
651.10 Actions B 651.6 Army NEPA obsolete.
Requiring Review. Reorganization of
environmental sections to consolidate
analysis. NEPA procedures into
one section, update of
content to incorporate
current Army
procedures.
651.11 B 651.6 Army NEPA Reorganization of
Environmental Review. sections to consolidate
review categories. NEPA procedures into
one section, update of
content to incorporate
current Army
procedures.
651.12 Determining B 651.6 Army NEPA Reorganization of
appropriate level Review. sections to consolidate
of NEPA analysis. NEPA procedures into
one section, update of
content to incorporate
current Army
procedures.
651.13 Classified B 651.8 Security Reorganization of
actions. Review and section (new title and
Clearance Policy new section number) and
for NEPA Documents. update of content to
incorporate current
Army procedures for
security reviews.
651.14 Integration B 651.7 NEPA Reorganization of
with Army planning. Principles and sections to consolidate
Practices. NEPA principles and
practices into one
section, update of
content to incorporate
current Army
procedures.
651.15 Mitigation B 651.7 NEPA Reorganization of
and monitoring. Principles and sections to consolidate
Practices. NEPA principles and
practices into one
section, update of
content to incorporate
current Army
procedures.
651.16 Cumulative B 651.7 NEPA Reorganization of
impacts. Principles and sections to consolidate
Practices. NEPA principles and
practices into one
section, update of
content to incorporate
current Army
procedures.
651.17 .......... Deleted............ Environmental justice
Environmental addressed through other
justice. compliance processes.
C--Records and Documents........ 651.18 Introduction .......... Removed............ Language/section
obsolete.
651.19 Record of B 651.6 Army NEPA Reorganization of
environmental Review. sections to consolidate
consideration. NEPA review procedures
into one section.
651.20 B 651.6 Army NEPA Reorganization of
Environmental Review. sections to consolidate
assessment. NEPA review procedures
into one section.
651.21 Finding of B 651.6 Army NEPA Reorganization of
No Significant Review. sections to consolidate
Impact. NEPA review procedures
into one section.
651.22 Notice of B 651.6 Army NEPA Reorganization of
intent. Review. sections to consolidate
NEPA review procedures
into one section.
651.23 B 651.6 Army NEPA Reorganization of
Environmental Review. sections to consolidate
Impact Statement. NEPA review procedures
into one section.
651.24 Supplemental B 651.7 NEPA Reorganization of
EAs and Principles and sections to consolidate
Supplemental EISs. Practices. NEPA principles and
practices into one
section, update of
content to incorporate
current Army
procedures.
651.25 Notice of B 651.6 Army NEPA Reorganization of
availability. Review. sections to consolidate
NEPA review procedures
into one section.
651.26 Record of B 651.6 Army NEPA Reorganization of
Decision. Review. sections to consolidate
NEPA review procedures
into one section.
651.27 Programmatic B 651.6 Army NEPA Reorganization of
NEPA Analyses. Review. sections to consolidate
NEPA review procedures
into one section.
D--Categorical Exclusions....... 651.28 Introduction .......... Removed............ Language/section
obsolete.
651.29 Determining C 651.11 Army CX Changes to extraordinary
when to use a CX Screening Criteria. circumstances are
(screening provided in the
criteria). Categorical Exclusions
Administrative Record
(https://denix.osd.mil/army-32cfr651).
[[Page 70330]]
651.30 CX actions.. C 651.12 Army CXs.... Administrative change:
Section number change,
title change
651.31 Modification C 651.12 Army CXs.... Administrative change:
to the CX list. Section number change,
title change.
E--Environmental Assessment..... 651.32 Introduction D 651.13 Introduction Section number update
651.33 Actions D 651.14 Actions due to regulation
normally requiring Normally Requiring reorganization.
an EA. an EA. Section number update
due to regulation
reorganization.
651.34 EA D 651.15 Contents of Reorganization of
Components. the EA. 651.16 sections to clarify EA
Contents of the requirements.
FONSI.
651.35 Decision D 651.17 EA Review Reorganization of
process. Process. sections to clarify EA
requirements.
651.36 Public D 651.17 EA Review Reorganization of
involvement. Process. sections to clarify EA
requirements.
651.37 Public D 651.17 EA Review Reorganization of
availability. Process. sections to clarify EA
requirements.
651.38 Existing B 651.7 NEPA Reorganization of
Environmental Principles and sections to consolidate
Assessments. Practices. NEPA principles and
practices into one
section, update of
content to incorporate
current Army
procedures.
651.39 Significance E 651.19 Actions Moved to the EIS section
Normally Requiring to consolidate with
an EIS. actions normally
requiring EIS
discussion.
F--Environmental Impact 651.40 Introduction .......... 651.18 Introduction Section number update
Statement. 651.41 Conditions E 651.19 Actions due to regulation
requiring an EIS. E Normally Requiring reorganization.
651.42 Actions E an EIS. Section number update
normally requiring 651.19 Actions due to regulation
an EIS. Normally Requiring reorganization.
651.43 Format of an EIS. Section number and title
the EIS. 651.20 Contents of update due to
651.44 Incomplete the EIS. regulation
Information. 651.21 Incomplete reorganization.
or Unavailable Section number and title
Information. update due to
regulation
reorganization.
Section number and title
update due to
regulation
reorganization.
651.45 Steps in E 651.22 EIS Process, Reorganization and
preparing and 651.23 Record of breakdown of EIS
processing an EIS. Decision, 651.24 requirements for
Implementation of clarity.
Decision, 651.25
Federal Register
Publication of
Army Actions.
651.46 Existing B 651.7 NEPA Reorganization of
EISs. Principles and sections to consolidate
Practices. NEPA principles and
practices into one
section.
G--Public Involvement and the 651.47 Public A, D and E 651.4 Army NEPA Incorporation of public
Scoping Process. involvement. Policy, 651.5 Army involvement procedures
NEPA Compliance for various NEPA
Responsibilities, activities throughout
651.16 Contents of the regulation.
the FONSI, 651.22
EIS Process.
651.48 Scoping E 651.22 EIS Process. Reorganization of
Process. sections to consolidate
EIS requirements.
651.49 Preliminary E 651.22 EIS Process. Reorganization of
Phase. sections to consolidate
EIS requirements.
651.50 Public E 651.22 EIS Process. Reorganization of
interaction phase. sections to consolidate
EIS requirements.
651.51 The Final E 651.22 EIS Process. Reorganization of
phase. sections to consolidate
EIS requirements.
651.52 Aids to E 651.22 EIS Process. Reorganization of
information sections to consolidate
gathering. EIS requirements.
651.53 .......... Deleted............ Language/section
Modifications of obsolete.
the scoping
process.
H--Environmental effects of 651.54 Introduction G 651.28 Overview.... Section number and title
major army action abroad. update due to
regulation
reorganization.
651.55 Categorical G 654.29 Use of Section number and title
exclusions. Categorical update due to
Exclusions. regulation
reorganization.
651.56 A 651.5 Army NEPA Reorganization of
Responsibilities. Compliance sections to consolidate
Responsibilities. responsibilities into
one section to
incorporate current
Army organization and
policy.
Appendices Appendix A-- .......... Appendix A-- Appendix updated to
References. References. incorporate current
references.
Appendix B-- C Subpart C (651.9- Reorganization of the
Categorical 651.12). regulation for ease of
exclusions. use--CX list
incorporated into
Subpart C. Changes to
CXs are discussed on
page 11.
Appendix C-- .......... Subpart F (651.26 Incorporated within
Mitigation and Mitigation and Subpart F for
monitoring. 651.27 Mitigation consolidation purposes.
and Monitoring).
Appendix D--Public .......... Subpart F (651.22). Incorporated within
participation plan. Subpart F for
consolidation purposes.
Appendix E--Content .......... Subpart F (651.22). Incorporated within
of the Subpart F for
Environmental consolidation purposes.
Impact Statement.
Appendix F-- .......... Appendix B......... Appendix number update
Glossary. due to regulation
reorganization,
definitions updated.
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[[Page 70331]]
2. Proposed Revisions to Categorical Exclusions
32 CFR part 651, appendix B, lists the current Army CXs. The CX
list has been integrated into the proposed subpart C, ``Categorical
Exclusions and Records of Environmental Consideration''.
D. Expected Impact of the Proposed Rule
The proposed rule revises internal Army procedures allowing for
consistent implementation across the Army for NEPA responsibilities.
Promulgating CXs will reduce government spending on compliance and
shorten project timelines for those activities that do not need a
detailed analysis. The Army currently prepares approximately 8,000 CXs
annually. The Army expects the proposed changes will increase use of
CXs and shorten project approvals.
E. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). This rule
has been designated a ``significant regulatory action'', although not
economically significant, under section 3(f) of Executive Order 12866
and was submitted to OMB for review. The revision is not a ``major''
rule within the meaning of Executive Order 12866 and the Congressional
Review Act.
F. Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is
expected to be related to agency organization and management.
G. Alternatives
1. No Action. No action would result in continued use of the
current regulation that contains outdated roles, responsibilities,
procedures, and a limited CX list. This would result in increasing
inefficiencies in Army NEPA analyses and could unnecessarily delay Army
actions which do not individually or cumulatively have a significant
effect on the human environment.
2. Next Best Alternative. The next best alternative to a complete
revision of the regulation would be a revision of the CXs only. This
would allow for use of new CXs instead of preparation of environmental
assessments, but would not address changes and resulting inefficiencies
in Army roles, responsibilities and procedures that have changed
significantly since the regulation was first published in 2002.
H. The Regulatory Flexibility Act
The Army has determined this this action is not subject to the
relevant provisions of the Regulatory Flexibility Act, 5, U.S.C. 601.
I. Unfunded Mandates Reform Act
The Army has determined that the Unfunded Mandates Reform Act does
not apply because the proposed rule does not include a mandate that may
result in estimated costs to State, local, or tribal governments in the
aggregate, or the private sector, of $100 million or more.
J. National Environmental Policy Act and Executive Order 12898 (Federal
Actions To Address Environmental Justice in Minority Populations and
Low-Income Populations)
This Part implements the National Environmental Policy Act of 1969
(NEPA), and specifies the Army's policies and responsibilities for the
early integration of environmental considerations into planning and
decision-making. Army has determined that the proposed regulations
would not have a significant effect on the environment because they do
not authorize any activity or commit resources to a project that may
affect the environment. Therefore, Army does not intend to conduct a
NEPA analysis of these proposed regulations for the same reason that
CEQ does not require any Federal agency to conduct NEPA analysis for
the development of agency procedures for the implementation of NEPA and
the CEQ regulations.
E.O. 12898 requires agencies to make achieving environmental
justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations. Army has analyzed this
proposed rule and determined that it would not cause disproportionately
high and adverse human health or environmental effects on minority
populations and low-income populations.
K. Paperwork Reduction Act
The Army has determined that this proposed rule does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
L. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
The Army has determined that Executive Order 12630 does not apply
because the proposed rule does not impair private property rights.
M. Executive Order 13045 (Protection of Children From Environmental
Health Risk and Safety Risks)
The rule is issued with respect to existing environmental
guidelines and laws. Therefore, this rule should not directly impact
this executive order.
N. Executive Order 13132 (Federalism)
Executive Order 13132 requires that Executive departments and
agencies identify regulatory actions that have significant federalism
implications. A regulation has federalism implications if it has
substantial direct effects on the States, on the relationship or
distribution of power between the Federal Government and the States, or
on the distribution of power and responsibilities among various levels
of Government. This organization has determined that this rule has no
federalism implications that warrant the preparation of a Federalism
Assessment in accordance with Executive Order 13132.
List of Subjects in 32 CFR Part 651
Categorical exclusions, Environmental analysis, Environmental
assessments, Environmental impact statements.
0
For reasons stated in the preamble, the Department of the Army proposes
to revise 32 CFR part 651 to read as follows:
PART 651--ENVIRONMENTAL ANALYSIS OF ARMY ACTIONS
Sec.
Subpart A-Introduction
651.1 Purpose, scope, and applicability.
651.2 References.
651.3 Definitions, terms, and abbreviations.
651.4 Army NEPA policy.
651.5 Army NEPA compliance responsibilities.
Subpart B--Army National Environmental Policy Act Implementation
651.6 Army NEPA review.
651.7 NEPA principles and practices.
651.8 Security Review and Clearance Policy for NEPA documents.
[[Page 70332]]
Subpart C--Categorical Exclusions and Records of Environmental
Consideration
651.9 Categorical exclusions and screening criteria general
information.
651.10 Record of environmental consideration.
651.11 Army CX screening criteria.
651.12 Army CXs.
Subpart D--Environmental Assessments
651.13 Introduction.
651.14 Actions normally requiring an EA.
651.15 Contents of the EA.
651.16 Contents of the FONSI.
651.17 EA review process.
Subpart E--Environmental Impact Statements
651.18 Introduction.
651.19 Actions normally requiring an EIS.
651.20 Contents of the EIS.
651.21 Incomplete or unavailable information.
651.22 EIS process.
651.23 Record of decision.
651.24 Implementation of decision.
651.25 Federal Register publication of Army actions.
Subpart F--Mitigation and Monitoring
651.26 Mitigation.
651.27 Mitigation monitoring and enforcement.
Subpart G--Environmental Effects of Major Army Actions Abroad
651.28 Overview.
651.29 Use of categorical exclusions.
Appendix A to Part 651--References
Appendix B to Part 651--Glossary
Authority: 42 U.S.C. 4321 et seq.; 40 CFR parts 1500-1508; E.O.
12114, 44 FR 1957, 3 CFR, 1979 Comp., p. 356.
Subpart A--Introduction
Sec. 651.1 Purpose, scope, and applicability.
(a) This part implements: The provisions of the National
Environmental Policy Act (NEPA) of 1969, as amended, 42 U.S.C. 4321, et
seq.; the Council on Environmental Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500 through 1508; and establishes the
Army's procedures for NEPA compliance. If there are any inconsistencies
between this part and 40 CFR parts 1500 through 1508, as may be
subsequently amended, the requirements of 40 CFR parts 1500 through
1508 shall prevail. The Army proponent for this part shall review this
part every five years after publication to determine if such amendments
or other circumstances require revision of this part.
(b) This part requires analysis and systematic examination of the
environmental consequences associated with implementing proposed Army
actions, public participation, and integration of environmental
considerations into Army planning and decision-making.
(c) This part applies to the: Department of the Army, Active Army,
Army Reserve, Joint Bases for which the Army is the lead component, the
Army's Acquisition process, functions of the Army National Guard (ARNG)
involving Federal funding, and functions for which the Army is the
Department of Defense (DoD) executive agent (hereinafter, the term
``Army'' has the meaning described in this section). This part does not
apply to Civil Works functions of the US Army Corps of Engineers
(USACE) or to combat or combat-related activities in a combat or
hostile fire zone. This part applies to relevant actions within the
United States, which is defined as all States; the District of
Columbia; territories and possessions of the United States; and all
waters and airspace subject to the territorial jurisdiction of the
United States.
Sec. 651.2 References.
Required and related publications are listed in appendix A of this
part.
Sec. 651.3 Definitions, terms, and abbreviations.
(a) The following definitions apply to this part:
(1) Army proponent (proponent)--The Army unit, element, or
organization that has the requirement for a proposed Army action and is
responsible for initiating and/or carrying the action out is the
proponent. The proponent is responsible for compliance with NEPA and
this part, and for ensuring that the appropriate NEPA analyses, public
participation, and documentation is completed prior to a decision on
the proposed action. The proponent or designee signs Records of
Environmental Consideration, (RECs) Environmental Assessments (EAs),
and Environmental Impact Statements (EISs), and is responsible for
development and retention of the administrative record documenting NEPA
compliance.
(2) Army approving official (approving official)--The approving
official is the Army military or civilian official who on behalf of the
Army approves and signs decision documents (Findings of No Significant
Impact (FONSIs), and Records of Decision (RODs)). The proponent may
function as the approving official, and approve and sign decision
documents.
(3) Active Guard and Reserve Duty--The term ``active Guard and
Reserve duty'' means active duty performed by a member of a reserve
component of the Army, Navy, Air Force, or Marine Corps, or full-time
National Guard duty performed by a member of the National Guard
pursuant to an order to full-time National Guard duty, for a period of
180 consecutive days or more for the purpose of organizing,
administering, recruiting, instructing, or training the reserve
components. See 10 U.S.C. 101(d)(6)(A).
(4) Adverse (impact or effect)--Impacts or effects of an action
that are detrimental and may require some degree of mitigation to
address the impact or to reduce the impact to a level that is not
significant.
(5) Categorical exclusion--A category of action that the Army has
determined has no individual or cumulative significant effect on the
human or natural environment, and for which no formal analysis under
NEPA is required.
(6) Controversy/controversial--Within the meaning of NEPA, and as
used in this part, ``controversy'' and ``controversial'' refers to a
major disagreement regarding the factual evidence pertaining to the
effects of a proposed action on the quality of the human environment,
rather than to the unpopularity or the amount of public opposition to a
proposed action. Public opposition to a proposed action does not make
that action controversial so as to require an EIS.
(7) Environmental harm--Environmental harm results when an action
may cause wide-scale, unmitigated, irreparable and irreversible
detrimental effects, degradation, or damage to environmentally
sensitive resources.
(8) Decision documents: NEPA decision documents are Findings of No
Significant Impact (FONSIs), and Records of Decision (RODs). The
proponent may function as the approving official.
(9) Environmental officer--An individual assigned to a table of
organization and equipment (TO&E), or table of distributions and
allowances (TDA) organization, or unit to accomplish environmental
compliance requirements on behalf of his or her responsible commander,
director, or supervisor. For the ARNG, environmental officers may serve
in Federal positions under title 32 of the CFR or as a Federal
Technician in Active Guard and Reserve Duty (AGR) status. In the event
that the ARNG environmental officer is not a Federal civilian employee
or a Federal Technician in AGR status, NEPA related actions requiring
signature must be signed by a Federal Technician, AGR, or Federal
civilian employee in the ARNG
[[Page 70333]]
environmental officer's chain of command.
(10) Environmental planning--Actively incorporating environmental
considerations into informed decision-making in order to balance
environmental concerns with mission requirements, technical
requirements, economic feasibility, and long-term sustainability of
Army operations.
(11) Environmentally sensitive resources--Includes but is not
limited to: Species that are federally listed as threatened or
endangered or are candidates for such listing; threatened or endangered
species critical habitat; migratory birds; Bald and Golden Eagles;
prime or unique agricultural lands; coastal zones; designated
wilderness or wilderness study areas; National Wildlife Refuges and
National Parks; wild and scenic rivers; floodplains; wetlands; riparian
areas; sole source aquifers; other natural resources of concern;
paleontological resources, historic properties including sites,
buildings, structures, districts, and objects eligible for or included
in the National Register of Historic Places; Native American human
remains and cultural items; archeological resources; Indian sacred
sites; protected tribal resources including tribal trust resources,
natural resources, and properties of traditional or customary religious
or cultural importance retained by or reserved by or for Indian tribes
through treaties, statutes, judicial decisions, or E.O.s.
(12) Effect--Effects and impacts as used in this part are
synonymous. Effects or impacts includes ecological, aesthetic,
historic, cultural, economic, social, or health, whether direct,
indirect or cumulative. Effects or impacts may be detrimental or
adverse, and/or beneficial.
(13) Extraordinary circumstances--Factors or circumstances in which
a normally excluded action may have a significant environmental effect
that then requires further analysis in an environmental assessment (EA)
or an environmental impact statement (EIS).
(14) Federal agency--Means all agencies of the Federal Government.
It also includes for the purposes of this part those federally-
recognized Indian tribes, States, and units of local governments that
have assumed NEPA responsibilities for a Federal agency action under
appropriate authority. It does not mean the Congress, the Judiciary, or
the President.
(15) Foreign nations--Any geographic area (land, water, and
airspace) that is under the jurisdiction of one or more foreign
governments. It also refers to any area under military occupation by
the United States alone or jointly with any other foreign government.
Includes any area that is the responsibility of an international
organization of governments; also includes contiguous zones and
fisheries zones of foreign nations.
(16) Global commons--Geographical areas outside the jurisdiction of
any nation. They include the oceans outside territorial limits and
Antarctica. They do not include contiguous zones and fisheries zones of
foreign nations.
(17) Impact--Impacts and effects as used in this part are
synonymous. Impacts or effects includes ecological, aesthetic,
historic, cultural, economic, social, or health, whether direct,
indirect or cumulative. Effects or impacts may be detrimental or
adverse, and/or beneficial.
(18) Major Federal action--The term ``major Federal action'' has
the same definition as that stated in 40 CFR 1508.18.
(19) Mitigated FONSI--When mitigation is a component or factor of
the proposed action (e.g., mitigation by design) and is so identified
in the FONSI in order to reduce impacts to less than significant
levels.
(20) NEPA analysis--NEPA analysis is the analytic process involved
in NEPA review.
(21) Approving official (also Army approving official)--The
approving official is the Army military or civilian official who on
behalf of the Army approves and signs.
(22) NEPA document--A NEPA document is the report that documents
the NEPA analysis and its results.
(23) Proponent (also Army proponent)--The Army unit, element, or
organization that has the requirement for a proposed Army action and is
responsible for initiating and/or carrying the action out is the Army
proponent. The proponent is responsible for compliance with NEPA and
this part, and for ensuring that the appropriate NEPA analyses, public
participation, and documentation is completed prior to a decision on
the proposed action. The proponent or designee signs RECs, EAs, and
EISs, and is responsible for development and retention of the
administrative record documenting NEPA compliance.
(24) NEPA review--NEPA review is the process of project and program
review under NEPA.
(25) Non-developmental item (NDI)--An NDI is any previously
developed item of supply used exclusively for government purposes by a
Federal Agency, a State or local government, or a foreign government
with which the United States has a mutual defense cooperation
agreement; any item described above that requires only minor
modifications or modifications of the type customarily available in the
commercial marketplace in order to meet the requirements of the
processing department or agency.
(26) Preparers--Government or contract personnel from a variety of
disciplines who prepare NEPA documents. They are primarily responsible
for the accuracy of the document. May include key government subject
matter expert document reviewers and contributors who provide
substantive language for inclusion or whose editorial directions drive
the substantive contents of the final NEPA document.
(27) Previously disturbed land--Land that has been changed such
that its functioning ecological processes have been and remain altered
by human activity. The phrase encompasses areas that have been
transformed from native vegetation to nonnative species or a managed
state.
(28) Significance (of effects or impacts)--The significance of
environmental effects or impacts is determined by examining both the
context and intensity of the proposed action. All effects should be
evaluated to determine the intensity or severity of impacts or effects
and the analysis should establish, for each environmental resource
warranting analysis, the threshold at which significance is reached.
The threshold enables the determination of significant or less-than-
significant impact. The evaluation of impacts must consider direct and
indirect effects, short-term and long-term effects, adverse and
beneficial effects, and cumulative effects. Potential impacts that may
occur when a proposed action will have an overall beneficial effect
must be analyzed for significance. If the proposed action could result
in significant effects to the environment that cannot be mitigated to a
level below significance, an EIS must be prepared prior to initiating
action. Significant effects of socioeconomic consequences alone do not
require an EIS. Significant beneficial effects alone do not require an
EIS.
(29) Staff or staffing--When used as a verb in this part, the term
refers to the coordination of an action to obtain concurrence or
approval.
(30) Tiering--Tiering refers to the coverage of general matters
such as a proposed DoD-wide or Army-wide program or policy in a broad
EIS or Programmatic EA, with subsequent narrower environmental analyses
(such as Command, installation, or site-
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specific levels) adopting by reference the general discussions and
concentrating solely on the issues specific to the analysis
subsequently prepared.
(31) Undisturbed land--Land in its natural state or land which has
reverted to its natural state where ecological processes remain
unattended by human activity.
(b) Abbreviations used in this part are explained in the glossary
in appendix B of this part.
Sec. 651.4 Army NEPA policy.
(a) The regulatory procedures in this part must be met by
proponents prior to implementing a proposed Army action affecting the
environment. Army proponents will integrate NEPA review into Army
project and program planning at the earliest possible time to ensure:
Army actions are implemented in compliance with environmental laws,
regulations, Executive orders (E.O.), Army and DoD policies and
directives; delays and issues are minimized; and stakeholder and public
involvement occurs as required. NEPA compliance does not substitute for
or replace the need to comply with other independent environmental
statutes (such as the Clean Water Act (CWA), Clean Air Act (CAA),
Endangered Species Act (ESA), National Historic Preservation Act
(NHPA), among others, Executive orders (E.O.s)), and other state and
Federal agency requirements. All applicable environmental requirements
that must be met for proposed Army actions should be taken into account
in the NEPA analysis.
(b) The success of the Army's war-fighting readiness mission relies
on access to and use of realistic natural landscapes and environmental
conditions that would be experienced during combat. The NEPA evaluation
of these critical environmental resources enables effective military
readiness training, material development; and the ability to rapidly
acquire, test, and field critical war-fighting materiel for our
Soldiers. NEPA also supports the Army's ability to effectively
implement military construction activities, industrial operations, and
Army modernization and future capabilities.
(c) The Army NEPA review process in this part defines
responsibilities, appropriate levels of NEPA review, ensures
alternatives are considered in Army decision-making, makes certain the
public is involved in the NEPA review process as required, and that the
analysis of environmental and socioeconomic impacts occurs in a manner
that avoids, minimizes, or mitigates environmental impacts. The
proponent will use the NEPA review process to inform Federal and state
agencies, local governments, federally-recognized Indian Tribes, Alaska
Natives, Native Hawaiians, non-governmental stakeholders, and members
of the public about the potential environmental and socioeconomic
impacts of proposed Army actions and proposed measures to address those
impacts. Communication, cooperation, government-to-government
consultation with federally-recognized Indian Tribes, and, as
appropriate, collaboration between governmental and non-governmental
entities are important elements of the NEPA review.
(d) Army decision-makers will use the results of the NEPA review in
order to be informed, and to inform the public about the impacts that
their decisions may have on environmental resources such as natural
resources including soils, forests, rangelands, fish and wildlife,
threatened and endangered species, wetlands, water quality, air
quality, cultural resources including historic buildings, archeological
sites, other historic properties, Native American sacred sites, and
other resources under Army stewardship. The NEPA process will also
inform decision-makers and the public of the potential socioeconomic
impacts that their decisions may have on surrounding communities. Army
decision-makers will balance mission requirements with socioeconomic
and environmental concerns, technical requirements, economic
feasibility, and long term resiliency, will inform stakeholders and the
public, and will document their decisions using the NEPA process and
appropriate decision documents.
(e) Proponents will ensure that NEPA compliance is timely,
effective, efficient, and adequately resourced, and will implement
measures to optimize the NEPA process whenever possible. NEPA
optimizing measures achieve more effective NEPA reviews and timely
conclusion of the NEPA process. Measures to optimize the NEPA process
include but are not limited to: A planning and coordination process for
EISs to develop and confirm the description of the proposed action and
alternatives prior to publication of the Notice of Intent; use of
programmatic NEPA documents and tiering where appropriate; reduced
attention on minor issues and extraneous background data and increased
focus on critical issues; inclusion of information by reference to
other documents; reduction of internal Army review-cycle times;
adoption of other independent statutory requirements into the NEPA
process where appropriate and allowed; and using categorical exclusions
and mitigated FONSIs whenever applicable; and by reducing the length of
environmental documents by means such as meeting appropriate page
limits.
Sec. 651.5 Army NEPA compliance responsibilities.
(a) The Assistant Secretary of the Army (Installations, Energy and
Environment) (ASA (IE&E)). (1) The ASA (IE&E) is the Army's responsible
official for NEPA policy and compliance, and is the proponent for this
part.
(2) The ASA (IE&E) ensures the Army's actions affecting or
impacting the environment are executed consistent with law, regulation,
and policy. The ASA (IE&E) will, through the Deputy Assistant Secretary
of the Army for Environment, Safety and Occupational Health (DASA
(ESOH)):
(i) Represent the Army NEPA Program to counterpart offices in the
Office of the Secretary of Defense (OSD), the military services, CEQ,
and Environmental Protection Agency (EPA), among others.
(ii) Communicate and advocate Army NEPA policies and programs to
Congressional members and oversight committees, other Federal agencies,
non-governmental organizations, federally-recognized Indian Tribes,
Alaska Natives, Native Hawaiians, and the public.
(iii) Approve Federal Register (FR) publication of Army NEPA
Notices of Intent (NOIs) and Notices of Availability (NOAs),
Information for Members of Congressional Delegations, Questions and
Answers, and Press Releases in accordance with Sec. 651.25.
(iv) Coordinate FR publication of Army actions with the Army
Federal Register Liaison Officer.
(v) Serve as the Secretary of the Army's (SA) responsible official
for environmental analyses abroad.
(vi) Address exemption requests and emergency actions according to
Sec. 651.6(b).
(vii) Review this part every five years after publication and
determine if amendments to 40 CFR parts 1500 through 1508 or other
circumstances require revision of this part.
(b) The Assistant Secretary of the Army (Acquisition, Logistics and
Technology) (ASA (ALT)). The ASA (ALT) is the Army Acquisition
Executive and leads the execution of the Army's acquisition function
and the acquisition management system; supervises the life cycle
management and sustainment of Army weapon systems and equipment from
research and development through test and evaluation, acquisition,
logistics,
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fielding, and disposition; appoints, manages, and evaluates program
executive officers and manages the Army Acquisition Corps and Army
Acquisition Workforce. As the Army Acquisition Executive, the ASA (ALT)
requires:
(1) Army acquisition programs and procedures comply with NEPA
requirements as set forth in this part, and Department of Defense
Directive 5000.01, Department of Defense Instruction 5000.02, Operation
of the Defense Acquisition System (http://www.dtic.mil/whs/directives/
), and implementing Army publications to include Army Regulation (AR)
70-1, Army Acquisition Policy, AR 73-1, Test and Evaluation Policy, and
the discretionary guidance contained within Department of the Army
Pamphlet 70-3, Army Acquisition Procedures (http://www.apd.army.mil/),
as well as the Defense Acquisition Guidebook.
(2) Environment, safety, and occupational health (ESOH) planning in
a Systems Engineering Plan (SEP); documentation of the results of the
planning in a Programmatic ESOH Evaluation (PESHE) as an addendum to
the SEP (the PESHE is for planning purposes and does not constitute or
substitute for NEPA compliance).
(3) Integration of environmental considerations early in the
acquisition process as part of the capability requirements document
development and as part of the Analysis of Alternatives.
(4) Acquisition Program Executive Officers (PEOs) and Acquisition
Program/Project/Product Managers (who acts as the Materiel Developer
(MATDEV)) (PMs) prepare and maintain a NEPA Compliance Schedule
covering all known or projected system-related activities, events, or
proposed actions that may trigger a requirement for NEPA documentation.
(5) Acquisition PEOs and PMs function as the proponent for their
respective acquisition actions and ensure the appropriate NEPA
documentation is prepared prior to acquisition activities, events, or
proposed actions. As part of the materiel fielding package PEOs and
PMs, in coordination with fielding locations, will prepare a
comprehensive evaluation of environmental information and potential
environmental issues obtained during the system specific acquisition
process. The materiel fielding package containing the comprehensive
evaluation of environmental information and potential site specific
environmental issues will be provided to each fielding location.
(6) Acquisition PEOs and Acquisition Program/Project/Product
Managers comply with the procedures in this part and:
(i) Coordinate NEPA documentation for acquisition with the
appropriate stakeholders.
(ii) Make NEPA documents for acquisition available to the approving
official prior to implementation of proposed actions.
(iii) Serve as the approving official where appropriate and sign or
appoint a designee to sign NEPA documents for acquisition actions.
(iv) Maintain the NEPA administrative record for their acquisition
and ensure they are placed in the Army NEPA repository in a timely
manner.
(v) Provide installations with NEPA documents and associated
analyses prepared during the acquisition process. The Installation
Commander is responsible for ensuring that NEPA documentation has been
completed prior to fielding new materiel at their installation.
(7) Middle-Tier Acquisitions (MTA), the MTA Decision Authority, and
PEOs and PMs designated as an MTA Decision Authority comply with the
requirements of NEPA by implementing this part in manner consistent
with MTA actions to rapidly prototype and field high priority military
capabilities.
(c) The Deputy Chief of Staff (DCS), G-9. DCS, G-9 is the Army
Staff (ARSTAF) proponent for Army military construction, master
planning, real property management, and base realignment and closure.
DCS, G-9 assists and supports the ASA (IE&E) in all aspects of Army
NEPA requirements and collaborates across the ARSTAF to ensure actions
are fully coordinated. The DCS, G-9 will:
(1) Designate a DCS, G-9 environmental officer responsible for NEPA
program management.
(2) Advise Army agencies in the preparation of NEPA analyses.
(3) Review and coordinate NEPA analyses and documents for Army
actions, and NEPA analyses and documents submitted by other DoD
components and other Federal agencies for actions of interest to or
effecting the Army.
(4) Monitor proposed Army policy and program documents that have
environmental implications to determine compliance with NEPA
requirements and ensure integration of environmental considerations
into decision-making processes.
(5) Prepare Army NEPA guidance for implementing this part, NEPA
program metrics, and oversee NEPA initiatives executed by the Army
Commands, Service Component Commands, and Direct Reporting Units.
(6) Monitor proponent implementation and execution of NEPA
requirements, E.O. 12114 and 32 CFR part 187 requirements, and develop
and execute guidance, programs, and initiatives to address problem
areas.
(7) Apply this part when planning and executing overseas actions,
where appropriate in light of applicable statutes and Status of Forces
Agreements (SOFAs).
(8) Provide guidance and ensure commanders implement the
requirements of E.O. 12114 and this part.
(9) Support DASA (ESOH) in all aspects of Army NEPA requirements.
(10) Advise headquarters organizations on process to secure funding
for NEPA requirements.
(11) Maintain manuals and guidance for optimizing NEPA analyses in
accordance with Sec. 651.4(e) for major Army programs and make this
guidance accessible to Army personnel and, as appropriate, the public.
(12) Maintain a record of command and installation NEPA points of
contact (POCs) in the Army.
(13) Review NEPA training at all levels of the Army, including
curricula at Army, DoD, other service, and other agency and
institutions. Review of DoD, other service, and other NEPA training is
limited to training affecting the Army.
(14) Designate and maintain an electronic Army-wide NEPA repository
for all Army EAs and EISs, FONSIs and RODs.
(15) Advise Army agencies regarding participation as a NEPA
cooperating agency.
(d) Deputy Chief of Staff G-3/5/7. The Deputy Chief of Staff (DCS),
G-3/5/7 is responsible for stationing the force. Any proposed
stationing action which meet criteria set forth in AR 5-10 requires DCS
G-3/5/7 coordination and Headquarters, Department of the Army (HQDA)
senior leadership approval. All proposed actions impacting training
mission will be coordinated with the DCS, G-3/5/7. The DCS G-3/5/7:
(1) Serves as or designates G-3/5/7 proponents and G-3/5/7
approving officials for Army actions under G-3/5/7 responsibility.
(2) Identifies the requirement to conduct NEPA early in the
stationing planning process.
(3) Integrates NEPA, and NEPA optimizing measures into the
strategic stationing decision framework.
(4) Ensures the appropriate NEPA analysis, document, and review
process
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occurs to inform senior leaders prior to final stationing decisions.
(e) The Assistant Secretary of the Army for Financial Management
and Comptroller (ASA (FMC)). The ASA (FMC) ensures Army NEPA compliance
requirements are supported in annual authorization requests.
(f) The Army General Counsel. The Army General Counsel (GC)
provides legal advice and review to the SA and ASA (IE&E) on all
environmental matters, to include interpretation and compliance with
NEPA and Federal implementing regulations, the requirements of E.O.
12114, and other applicable legal authority. Determines the final Army
position on legal questions and issues related to NEPA. Serves as the
point of contact between the Army and OSD Office of General Counsel and
General Counsels of other services and Federal agencies with regard to
Army NEPA compliance.
(g) The Judge Advocate General (TJAG). TJAG provides legal advice
to the ARSTAF and assistance in NEPA interpretation, Federal
implementing regulations, the requirements of E.O. 12114, and other
applicable legal authority; determine the legal sufficiency for Army
EISs, EAs of national concern or interest, and other NEPA documentation
as appropriate; and interface with the Army GC and the Department of
Justice on NEPA-related litigation.
(h) The Army Surgeon General. The Surgeon General provides
technical expertise and guidance to proponents in the Army, as
requested, to assess public health, industrial hygiene, and other human
health aspects of proposed programs and projects.
(i) The Chief, Public Affairs. The Chief, Public Affairs:
(1) Provides communication plan development guidance to enable
appropriate public involvement on Army actions. Provides public affairs
guidance on conducting public meetings for NEPA processes and on
issuing public announcements such as NOIs, scoping, and NOAs.
(2) Reviews and coordinates planned public announcements on actions
of national concern or interest, and actions that will undergo an EIS
process, with appropriate ARSTAF elements, ASA (IE&E) and the Office of
the Assistant Secretary of Defense for Public Affairs (OASD (PA)).
(3) Assists in the issuance of appropriate press releases to
coincide with the publication of notices in the FR.
(4) Provides assistance, as requested, to Army Public Affairs
Officers (PAOs) regarding the development and release of public
involvement materials.
(j) The Chief of Legislative Liaison. The Chief of Legislative
Liaison notifies Members of Congress of pending actions including those
that will be published in the FR. The Chief will:
(1) Provide guidance on issuing Congressional notifications for
NEPA notifications that will be published in the FR.
(2) Review proposed Congressional notifications on actions.
(3) Issue Congressional notifications prior to the publication of
NEPA notifications in the FR.
(k) Commanders of Army Commands, the Director of the ARNG, Chief,
U.S. Army Reserve and Commanding General of U.S. Army Reserve Command,
Army Service Component Commands, and Direct Reporting Units (Commands).
These Commands will:
(1) Apply policies and procedures of this part to programs and
actions within their staff responsibility, except for state-funded
operations of the ARNG.
(2) Assume proponency for their proposed actions.
(3) Assign a command environmental officer responsible for NEPA
program management, and report the individual by name to DCS, G-9.
(4) For programs and actions within their staff responsibility that
require a NEPA notice to be published in the FR, staff the FR
publication package for review at HQDA; see Sec. 651.25.
(5) Establish procedures for identification of the appropriate
proponent and delineate responsibilities for the NEPA review process
within their command. Develop and implement Command-wide NEPA guidance,
as needed, in coordination with the DCS, G-9.
(6) Assist in the review and staffing of NEPA documentation
prepared by or affecting subordinate elements.
(7) Maintain the capability (personnel and other resources) to
comply with the requirements of this part and include provisions for
NEPA requirements through the Program Planning and Budget Execution
System (PPBES) process.
(8) ARNG installations consist of the 54 States and Territories and
are commanded by a state government official, The Adjutant General
(TAG).
(i) TAGs have authority over ARNG personnel and resources within
the States and Territories they command. As a state government
official, TAGs cannot function as the proponent or Army approving
official. TAGs will review and validate NEPA documents prepared for
projects within their command, and will forward those NEPA documents to
the Director, ARNG.
(ii) The Director, ARNG or designee serves as the proponent and
approving official for ARNG actions. The Director, ARNG or designee
signs RODs for ARNG EISs, and FONSIs for ARNG EAs.
(iii) ARNG Records of Environmental Consideration (RECs) are signed
at the installation level by ARNG environmental officers that serve in
Federal positions in title 32 of the CFR. In the event that the ARNG
environmental officer is not a federal civilian employee, or a Federal
Technician in Active Guard and Reserve Duty (AGR) status, the ARNG RECs
are signed by a Federal Technician, AGR, or Federal civilian employee
in the ARNG environmental officer's chain of command.
(l) The Commander, U.S. Army Training and Doctrine Command
(TRADOC). In addition to responsibilities as a proponent, as
applicable, the Commander, TRADOC will:
(1) Ensure that NEPA requirements are understood and incorporated
in the Officer Foundation Standards (OFS).
(2) Integrate environmental considerations into doctrine,
organization, training, materiel, leadership and education, personnel,
facilities, and policy (DOTMLPF-P) processes.
(3) Include environmental officer representation on all Integrated
Concept Teams (ICTs) involved in requirements determinations.
(4) Ensure that TRADOC Capability Managers retain and transfer
environmental analyses or data to the MATDEV upon approval of the
materiel Capabilities Requirements Documents.
(5) Ensure that environmental considerations are incorporated into
the Capabilities Requirements Documents.
(m) Installation Commanders. For the purposes of this part,
Installation Commander refers to all Army Commanders and senior
civilian managers of land holding organizations who serve as the senior
executive for installation activities and are responsible for day-to-
day operation and management of installations. Commanders who execute
land holding functions may be referred to by different titles for
different Army organizations. For an Installation Management Command
installation, these responsibilities fall upon the Garrison Commander
(the Senior Commander's senior executive for installation activities),
or the Garrison Manager. For other Army commands, this function may be
served by an Installation Commander; for the Reserves,
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Commanders of U.S. Army Reserve Readiness Divisions and Mission Support
Commands (MSCs); for ARNG see Sec. 651.5(l) for commander
responsibilities. Commanders of arsenals or depots may have these same
terms in their title (``Depot Commander''), and are also included in
this section, as are commanders of Government-owned, Contractor-
Operated (GOCO) facilities. This section is intended to refer to all
commanders and senior civilian managers of land holding organizations,
regardless of title. The description ``land holding'' is intended to
encompass all resources and areas, such as surface and subsurface
waters and airspace within the command and/or control of the land
holding commander. Hereinafter, the term ``Installation Commander'' has
the meaning described in this section. Installation Commanders will:
(1) Establish an installation NEPA compliance program and evaluate
its performance.
(2) Serve as, or designate a proponent and approving official for
installation sponsored actions requiring NEPA compliance.
(3) Ensure NEPA requirements associated with fielding new materiel
at their installation have been met.
(4) Plan, program, and budget for installation NEPA requirements,
and initiate the NEPA review of installation proposed actions early in
the planning process.
(5) Ensure that proposed actions subject to NEPA are coordinated by
appropriate organizations.
(6) Ensure installation staff elements, tenants, and others
incorporate NEPA requirements early in the planning of proposed
actions.
(7) Maintain an administrative record of all installation NEPA
documents and associated information, and ensure NEPA documents are
deposited in the Army NEPA Repository.
(8) Ensure NEPA awareness and/or training is provided for
professional staff, installation-level proponents, and document
reviewers (for example, master planning, range operations, acquisition
support staff, etc.).
(9) In coordination with the proponent, ensure mitigation measures
specified in NEPA documents are carried out, and that a mitigation and
monitoring plan is developed and implemented as needed.
(10) Consult on a government-to-government basis with federally-
recognized Indian Tribes.
(11) Implement NEPA optimizing measures as appropriate.
(12) Review, validate, concur, or co-sign and approve (as
appropriate) NEPA documentation for proposed actions prepared by other
Army or DoD organizations that will take place in the area over which
the Installation Commander has authority. The Installation Commander
may authorize a designee to concur or co-sign on their behalf.
(13) Designate an Installation environmental officer responsible
for NEPA program management who will:
(i) Assist proponents in integrating the NEPA process into their
activities and programs.
(ii) Advise the commander on NEPA matters and enable early
coordination with the proponent for proposed actions requiring NEPA
documentation.
(iii) Prepare and coordinate NEPA documents as directed by the
Installation Commander.
(iv) Serve as the proponent, and/or as the approving official if
designated, for installation sponsored actions.
(v) Advise his/her organization on the selection, preparation, and
completion of NEPA analyses and documentation, as well as the possible
extent of required mitigation (see Subpart F), for those proposed
actions for which the organization is the proponent and for those NEPA
analyses of others that will impact or involve the environmental
resources or mission activities for which the organization has
oversight.
(vi) Develop and publish local NEPA guidance and procedures.
(vii) Identify additional environmental information needed to
support informed Army decision-making.
(viii) Assist proponents to identify issues, impacts, and possible
alternatives and/or mitigation measures relevant to specific proposed
actions.
(ix) Ensure mitigation measures are implemented, and mitigation
monitoring occurs to ensure that mitigation measures are accomplished.
(x) Assist in completion of agency, stakeholder, and public
coordination. Request PAO review and assistance with all public
communications and events.
Subpart B--Army National Environmental Policy Act Implementation
Sec. 651.6 Army NEPA review.
(a) Army actions that may involve some level of NEPA compliance
generally include, but are not necessarily limited to:
(1) Policies, regulations, plans, and procedures that affect the
use or management of the environment.
(2) Research, Development, Test, and Evaluation (RDT&E) activities;
acquisition program actions; and real property and facility management
actions.
(3) Projects involving facility construction, renovation, or
demolition.
(4) Military operations and activities including training, flight
operations, overall operation of installations, and test and evaluation
programs.
(5) Actions that require licenses for operations or special
material use, including a Nuclear Regulatory Commission (NRC) license,
an Army radiation authorization, and Federal Aviation Administration
(FAA) air space requests (new, renewal, or amendment).
(6) Materiel acquisition, development, testing, fielding, operation
and support, disposal, and/or modification.
(7) Transfer and use of weapons systems or other personal property
to the ARNG or Army Reserve.
(8) Research and development including areas such as genetic
engineering, laser testing, and electromagnetic pulse generation.
(9) The planned use of land acquired through leases, easements,
permits, licenses, out-grants, 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 sporting events, air shows, or carnivals.
(10) Federal contracts, grants, cooperative agreements, subsidies,
loans, or other forms of funding such as Government-Owned, Contractor-
Operated (GOCO) industrial plants or housing and construction via
third-party contracting.
(11) Request for approval to use, store, or dispose of non-DoD
radiation sources, hazardous or toxic material, or hazardous or toxic
wastes on Army land, when permitted by law.
(12) Stationing actions that result in increases, reductions, or
realignments of military and civilian personnel.
(b) Special circumstances. The following are special circumstances
addressing exemptions and emergency actions.
(1) Exemption by law. NEPA itself does not contain a statutory
exemption. NEPA exemptions in other statutes must apply to DoD and/or
the Army and must prohibit, exempt, or make impossible full compliance
with the NEPA procedures. While some aspects of Army decision-making
may be exempted from NEPA, other aspects of an action may still be
subject to NEPA review. Army proponents who believe a proposed Army
action qualifies for an
[[Page 70338]]
exemption from NEPA will, at the earliest practicable time, notify
their chain of command and DASA (ESOH). DASA (ESOH) will coordinate
with the appropriate OSD office, and will request a binding legal
opinion regarding the applicability of the exemption from Army OGC.
Congressional direction to the Army to take an action does not
constitute an exemption from NEPA.
(2) Emergencies. (i) The Army will not delay an emergency action
necessary for national defense, security, or preservation of human life
or property to comply with this part. 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.
(ii) Where emergency circumstances make it necessary for a
responsible Army official to take an action with significant
environmental impact without observing the provisions of this part, the
Army official will, at the earliest practicable time, notify their
chain of command and DASA (ESOH). The responsible Army official will
consult with CEQ as soon as reasonably possible about alternative
arrangements. This section applies only to actions necessary to control
the immediate effects of the emergency.
(iii) Where the significance of the impacts are unknown but are
anticipated to be less than significant, and emergency circumstances
make it necessary to take an action without observing the provisions of
this part, the responsible Army official will, at the earliest
practicable time, notify their chain of command and the DASA (ESOH). If
the action is ongoing, an appropriate NEPA review will be prepared as
soon as practicable.
(iv) After-action reports may be required at the discretion of the
DASA (ESOH).
(v) State call-ups of ARNG during a natural disaster or other state
emergency are excluded from the notification requirements of this
section.
(c) Levels of Army NEPA review. The following are the levels of
NEPA review that a proposed Army action may be subject to:
(1) CX. This level of NEPA review addresses actions that normally
do not require an EA or an EIS. A CX is applicable where the Army has
determined that certain actions do not individually or cumulatively
have a significant effect on the human environment. Requirements for
application of a CX are further described in this part. The Army uses a
Record of Environmental Consideration (REC) to document the application
of certain CXs. Army CXs and RECs are addressed in subpart C of this
part.
(2) EA. Proposed Army actions not covered by paragraphs (b) and
(c)(1) of this section must be analyzed to determine if they could
cause significant impacts to the environment. The EA is the basis for
determining that impacts would not be significant, are mitigated to
less than significant, or that an EIS is required. The EA requires
analysis of the magnitude of impacts and evaluation of their
significance. The EA findings are documented in either a FONSI or an
NOI (to prepare an EIS). This process requires public review of the
signed EA and draft FONSI. The format and requirements for the EA are
addressed in subpart D of this part.
(3) EIS. When an action clearly has significant impacts or when an
EA cannot be concluded by a FONSI, an EIS must be prepared. An EIS is
initiated by the NOI published in the FR. An EIS examines the
environmental effects of the proposed action and reasonable
alternatives as well as potential measures to mitigate adverse effects.
This process requires formal interaction with the public, to include a
scoping process, opportunities for public review of the Draft EIS, and
the incorporation of public comments. The format and requirements for
the EIS are addressed in subpart E of this part.
(4) Programmatic EA or EIS. Army agencies may analyze proposed
actions at a programmatic level for programs and actions that are
similar in nature or broad in scope and/or that involve decisions
related to multiple locations to eliminate repetitive discussions of
the same issues and focus on the key points at each appropriate level
of project review. When a programmatic EA or EIS has been prepared, any
subsequent EIS, EA, or REC on an action included within the entire
program or policy (particularly a site-specific action) can ``tier''
off the original analyses, eliminating duplication. The subsequent
documents need only summarize issues discussed in the broader statement
and concentrate on the issues specific to the subsequent, site-specific
action.
Sec. 651.7 NEPA principles and practices.
(a) Synchronizing environmental reviews. (1) Proponents will ensure
that permitting, compliance, consultation, and coordination required by
other applicable independent environmental statutes and regulations is
completed prior to execution of the decision document (FONSI or ROD).
The proponent will incorporate the information and requirements
resulting from these independent compliance actions into the NEPA
document to identify and assess potential environmental impacts and
mitigation measures.
(2) NEPA compliance does not replace the procedural or substantive
compliance requirements of other independent environmental statutes and
regulations. The NEPA analysis summarizes and consolidates the
information resulting from compliance with other independent
environmental statutes and regulations into a single NEPA document.
This ensures the approving official has a comprehensive view of the
environmental issues and understands the full scope of potential
environmental consequences.
(3) Decision documents will be forwarded to the planners,
designers, and/or implementers to ensure the actions and mitigation
measures occur as specified in the decision document and are
incorporated as needed during project execution.
(b) Analyzing connected actions. (1) The Army will analyze impacts
of connected actions within the same NEPA review. Connected actions are
actions that are closely related, and include: Actions that
automatically trigger other actions that may require a higher level of
analysis; those that cannot or will not proceed unless another action
is taken previously or simultaneously; and those that are
interdependent parts of a larger action and depend on the larger action
for their justification.
(2) Segmentation is the impermissible separation of connected
actions into different NEPA analyses for the purposes of, or having the
result of, avoiding the appearance of significance of the total action.
Segmentation includes defining an action too narrowly to avoid a higher
level of analysis. The use of a programmatic NEPA document and
subsequent tiering of NEPA analyses is permissible and does not
constitute improper segmentation.
(3) The rapidly and continuously evolving nature of the national
defense mission, and the sheer size, nation-wide geographic
distribution, and inherently hierarchical organization of the Army,
often require that higher-headquarter decisions are made without a
complete analysis of the multitude of connected actions, alternatives,
and impacts at the site-specific, installation level. Such actions are
best analyzed using a programmatic tiered NEPA approach, with the
local-level analyses focused on alternatives for the best
implementation of the higher-level decision.
[[Page 70339]]
(c) Cumulative impacts. NEPA documents must assess cumulative
impacts.
(d) Preparing the administrative record. The proponent is
responsible for maintaining the complete administrative record for the
proposed action, and for providing copies of the record to the relevant
environmental officer responsible for NEPA program management if
requested. The administrative record includes all documents and
information used to make the decision. All documentation and supporting
administrative records will be retained by the installation staff
responsible for NEPA program management, at the installation where the
proposed action takes place. The administrative record will be retained
for a minimum of six years after signature of the decision document or
the completion of the action, any required mitigation is complete, or
the information is no longer valid, whichever is later. For
programmatic NEPA analyses, the proponent will keep NEPA documentation
and supporting administrative records. The proponent will ensure that
EAs/FONSIs and final EISs/RODs are uploaded into the Army NEPA
repository as designated by DCS, G-9.
(e) Preparing a Supplemental EA or Supplemental EIS. When
significant new or previously unknown circumstances or information
relevant to the environmental effects or impacts of an action are
revealed, the proponent will determine if the completed NEPA
documentation is adequate. If the completed NEPA documentation is
adequate, or if a CX is applicable to the changes or to the new
circumstances or information, a REC may be prepared. If conditions
warrant a Supplement EA or a Supplemental EIS, these documents are
prepared and processed in the same way as the original EA or EIS. No
new scoping is required for a Supplemental EIS filed within one year of
the filing of the original ROD.
(f) Addressing response actions. Response actions implemented in
accordance with the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) or the Resource Conservation and Recovery
Act (RCRA) do not require separate NEPA review. Where appropriate,
CERCLA and RCRA analysis and documentation should incorporate the
values of NEPA.
(g) Joint basing applicability. This part applies to joint bases
for which the Army is the supporting component. This part applies to
supported military components on joint bases where the Army is the
supporting component. Supported Army proponents on a joint base where
another military service is the supporting component will follow the
supporting military component's NEPA regulations. Under joint base
agreements, the supporting service component provides installation
management services to the supported service component including
management functions associated with NEPA documentation financed by
supported components.
(h) Army as NEPA lead agency. In some cases, other Federal
agencies, and local, state, regional, or tribal governments or agencies
will have sufficient jurisdiction by law or special expertise with
respect to a proposed Army action that the NEPA process would benefit
from the participation of the organization. When appropriate, the
proponent for an action should determine whether these entities have an
interest in becoming a cooperating agency. If cooperating agency status
is established, a memorandum of agreement (MOA) or MOU 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 use
their own funds, and the designation of cooperating agency status
neither enlarges nor diminishes the decision-making status of any
Federal entity leading or cooperating in the action.
(i) Army as NEPA cooperating agency. In cases where other agencies
take actions that can impact the Army mission, the Army may have some
special or unique expertise or jurisdiction by law. In those
circumstances, the Army may be a NEPA cooperating agency and provide
information or technical expertise to a lead agency, approve portions
of a proposed action under Army control, ensure the Army has an
opportunity to be involved in an action of another Federal agency that
will affect the Army, and provide review and approval of the portions
of NEPA documents that affect the Army.
(j) Other reports. Army proponents may publish fact sheets and/or
supplemental information documents on complex or long-term NEPA reviews
to keep the public informed on the status of the proposed action.
(k) Greenhouse gas (GHG) and climate change. When defining the
scope of NEPA analysis, the proponent determines whether and to what
extent GHG emissions and climate change effects warrant analysis. When
the proponent determines that reasonably foreseeable GHG emissions are
substantial enough to warrant quantification, the proponent should:
(1) Quantify those GHG emissions where information and
quantification tools are available, and where quantification would be
practicable and not overly speculative.
(2) Where quantification would not be practicable or would be
overly speculative, the proponent should include a qualitative
analysis.
(3) Emissions should be reasonably foreseeable, there must be a
sufficiently close causal relationship.
(4) Proponents are not required to quantify effects where
information necessary for quantification is unavailable, not of high
quality, or the complexity of identifying emissions would make
quantification overly speculative.
(5) A direct and indirect effects analysis of GHG emissions is
sufficient and a separate cumulative impact analysis for GHG emissions
is not required.
(6) Proponents are not required to develop cost benefit analyses,
including Social Cost of Carbon (SCC). SCC analyses were not intended
for socio-economic analysis under NEPA or decision-making on individual
actions, including project-level decisions.
(l) Information inclusion. Proponents should identify and eliminate
from further consideration any insignificant issues and information
that is not relevant or important to determining the environmental
effects of a proposed action. This also includes issues and information
which have been covered in a previous environmental review.
(m) NEPA time limits. Proponents should strive to achieve
completion of:
(1) EAs within one year. One year is measured from the date of the
proponent's decision to prepare an EA to the publication of a final EA.
(2) EISs within two years. Two years is measured from the date of
the issuance of the NOI to the date a ROD is signed.
Sec. 651.8 Security review and clearance policy for NEPA documents.
The proponent will ensure NEPA documents intended for public
release undergo operational security review and are cleared for public
release. Security review and clearance protects classified information,
controlled unclassified information, unclassified information that may
individually or in aggregate lead to the compromise of classified
information, militarily critical information and other information that
if disclosed is deemed an operational security risk.
(a) Classified proposals, and proposed actions involving
classification of
[[Page 70340]]
information, militarily critical and other information whose disclosure
is deemed a risk to national defense operational security does not
relieve the proponent of the NEPA compliance requirement to assess and
document the effects of their proposed action on the environment.
(b) Information may be considered militarily critical if it
addresses the following subjects or affects the operations security
thereof:
(1) New weapons or weapons systems, or significant modifications or
improvements to existing weapons or weapons systems, equipment, or
techniques.
(2) Military operations and significant exercises of national or
international significance.
(3) Command, control, communications, computers, intelligence,
surveillance, and reconnaissance; information operations and
cyberspace; weapons of mass destruction; improvised explosive devices;
and computer security.
(4) Military activities or application in space; nuclear weapons,
including nuclear weapons effects research; defense from chemical and
biological warfare and threats; initial fixed weapons basing; and arms
control treaty implementation.
(5) Any other contemporary topic that is so designated by the
appropriate authority.
(c) Proponents will follow all applicable DoD and Army information
security regulations (including AR 380-5 Department of the Army
Information Security Program) for proposed actions and NEPA analyses
involving classified information, or military critical and other
information deemed a risk to operational security. EAs and EISs which
address classified proposals, contain classified information,
militarily critical or other information deemed an operational security
risk will be safeguarded, and may be restricted from public
dissemination.
(d) When classified information, militarily critical or other
information deemed an operational security risk can be reasonably
separated from other information, an unclassified and publically
releasable NEPA document will be prepared and processed in accordance
with this part. Classified information, militarily critical and other
information deemed an operational security risk will be safeguarded,
restricted from public dissemination, and provided to reviewers and
approving officials in accordance with AR 380-5. Critical program
information will be kept separated and provided to reviewers and
decision-makers in accordance with the appropriate distribution
statement.
(e) When classified information, militarily critical and other
information deemed an operational security risk is an integral part of
the analysis of a proposal such that a meaningful NEPA document cannot
be produced for public dissemination, the proponent will: Ensure that
the appropriate NEPA analysis is prepared by individuals with
appropriate expertise and clearance levels, consider environmental
effects in accordance with Sec. 651.1(b), safeguard and restrict the
resulting NEPA document from public dissemination, and ensure that the
approving official is fully informed of the environmental consequences
of the proposed action prior to making a decision regarding the action.
The proponent will retain the NEPA document and associated NEPA
analyses as part of the administrative record for the proposed action
in accordance with applicable Army information security regulations.
Subpart C--Categorical Exclusions and Records of Environmental
Consideration
Sec. 651.9 Categorical exclusions and screening criteria general
information.
(a) CXs are categories of actions with no individual or cumulative
significant effect on the human or natural environment, and for which
neither an EA nor an EIS is required. The use of a CX is intended to
reduce paperwork and eliminate delays in the initiation and completion
of proposed actions that have no significant impact. Proponents must
apply the Army CX screening criteria to determine if a CX is applicable
to their proposed action. The Army CX screening criteria are at Sec.
651.11 and the Army CXs are at Sec. 651.12.
(b) Specific screening criteria must be applied to determine if a
CX is appropriate and applicable. The screening criteria must be
applied to ensure that no extraordinary circumstances or effects on
environmentally sensitive resources exist, or to ensure that any
effects on environmentally sensitive resources have been addressed
through a prior NEPA document or by compliance with other environmental
statutes and regulations.
(c) If no CX is appropriate, the potential environmental impacts of
the proposed action must be analyzed in an EA/FONSI or an EIS/ROD
before it may proceed. Where documentation is needed to clarify that
the proposed action is adequately covered by a prior completed NEPA
document, a REC is prepared to that effect (Sec. 651.10).
Sec. 651.10 Record of environmental consideration.
(a) A REC is a signed statement that briefly describes a proposed
action, and documents that the action has received NEPA review. A REC
has no prescribed format, as long as it contains all relevant
information required to support its conclusions.
(b) RECs are used to:
(1) Document how an action qualifies for a CX when a REC is
required for the CX and that it is not a major Federal action or has no
potential for significant effects on the environment;
(2) Document where other environmental statutory or regulatory
compliance requirements (other than NEPA) have been used to address
potential impacts to environmentally sensitive resources;
(3) Describe how a prior completed NEPA document applies to the
current proposed action such that the proposed action has already been
adequately analyzed in a completed NEPA document; and
(4) Identify new or additional information and document a
determination that amendment or supplementation of a previously
completed EA or EIS is not needed, even in light of the new or
additional information. In such circumstances, an additional
information document may be prepared and attached to the REC.
(c) REC content. (1) RECs must document the basis for the
determination that a CX is applicable, including the conclusions
reached during application of the screening criteria. The REC must
expressly state that screening criteria were applied.
(1) RECs may include by reference relevant and readily available
documents, and new or additional information.
(2) When used to document that a proposed action is adequately
covered within a previously completed EA or EIS, the REC should state
the applicable EA or EIS title, date, date of FONSI or ROD, and the
location of record copies.
(3) While a REC may document compliance with the requirements of
NEPA, it does not fulfill the requirements of other environmental
statutes and regulations. The REC should reference compliance with
other environmental statutes and regulations. Appropriate interagency
correspondence can be referenced in and/or attached to the REC to
document compliance with other environmental statutes and regulations.
[[Page 70341]]
(4) RECs must address all connected actions associated with the
proposed action.
(d) REC coordination and signature. RECs will be coordinated with
appropriate Army offices as determined by the proponent. RECs require
one signature, and are signed by the approving official, or their
designee. RECs can only be signed by Army military personnel or a
Federal civil service employee. RECs must be dated and include the
estimated date or timeframe of the proposed action. RECs must be signed
prior to the start of the proposed action. A REC need not be published
or made available to the public for comment, but must be kept by the
proponent with the project file for the proposed action and, subject to
operations security review, may be made available to the public on
request.
(e) Once a REC is signed, the NEPA process is concluded, and the
proposed action may proceed.
(f) More than one CX may apply to a proposed action. Not all
applicable CXs may require a REC; however, a REC should discuss all
connected actions, including those that are covered by an applicable CX
that does not require a REC, to clarify that the actions were analyzed
and not segmented.
Sec. 651.11 Army CX screening criteria.
The Army Screening Criteria are as follows:
(a) The proposed action has not been segmented (see Sec.
651.7(b)(2)).
(b) Determine if the proposed action involves extraordinary
circumstances that would preclude the use of a CX. Extraordinary
circumstances that preclude the use of a CX are:
(1) Unique characteristics of the affected site or region in which
the proposed action is located indicate a reasonable likelihood of
significant effects (direct, indirect, or cumulative) on public health,
safety, or the environment.
(2) Possible effects on the environment are highly uncertain or the
proposed action involves unique or unknown risks.
(3) Scope or size of the proposed action is substantially greater
than what is typical or what is described in otherwise applicable CXs.
(4) Implementation of the proposed action would require a
substantive revision to a management plan and an EA or EIS for the
management plan is required prior to the plan revision being finalized
or approved.
(5) Reasonable likelihood that the proposed action would result in
discharges or emissions of pollutants above a de-minimis level and/or
reportable quantities, and the discharge or emission is not otherwise
alleviated through another environmental process (e.g., discharge or
emission permit).
(6) Reasonable likelihood of violating an applicable Federal,
state, or local law or requirement imposed for the protection of the
environment.
(7) Effects on the quality of the environment likely to be highly
controversial.
(8) Would establish a precedent (or make decisions in principle)
for future or subsequent actions that are reasonably likely to have a
future significant effect.
(9) Introduction/employment of materials or technology for which
potential impacts on the environment are unproven.
(c) A CX may not be used if a proposed action would adversely
affect an environmentally sensitive resource unless the adverse effect
is addressed through another environmental compliance process (for
example, Endangered Species Act (ESA), Native American Graves
Protection and Repatriation Act (NAGPRA), Integrated Natural Resources
Management Plans (INRMPs) adhering to the Sikes Act, Migratory Bird
Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA),
Coastal Zone Management Act (CZMA), National Historic Preservation Act
(NHPA), Clean Water Act (CWA), etc.). A REC is required to document the
use of another environmental compliance process to address potential
impacts to environmentally sensitive resources. The term
``environmentally sensitive resources'' is defined in appendix B,
Section II, of this part.
(d) The use of a CX does not relieve the proponent from compliance
and consultation requirements under other statutes, regulations, and
permits.
Sec. 651.12 Army CXs.
(a) Army CXs. Army CXs are grouped under common types of
activities, see paragraphs (b) through (i) of this section.
(1) CXs that require a REC are so identified. If a CX does not
require a REC, no documentation is necessary. The screening criteria
must be analyzed to provide sufficient detail to demonstrate that no
extraordinary circumstances exist that would preclude the use of a CX.
(2) Proposed actions may not be segmented in order to meet the
requirements of a CX.
(3) The list of CXs is subject to continual review and
modification. Requests for additions or changes to the CXs (along with
justification) should be staffed, through channels, to the ODASA
(ESOH). Subordinate Army headquarters may not modify the CX list
through supplements to this part.
(4) More than one CX may be cited for a given proposed action.
(b) Administrative measures. (1) Routine law and order activities
performed by civilian and military police, physical plant protection
and security personnel, and civilian natural resources and
environmental law officers. This includes defense support to civil
authorities and search and rescue operations.
(2) Emergency or disaster assistance provided to Federal, state, or
local entities (REC required).
(3) Preparation, revision, and promulgation of regulations,
policies, directives, procedures, manuals, and guidance documents that
implement HQDA or other Federal agency regulations, policy, procedures,
manuals, and guidance documents that have been the subject of previous
NEPA review or do not have substantial impacts on the environment.
(4) Proposed administrative activities and operations to be
conducted in an existing structure that are within the scope and
compatibility of the present functional use of the structure. This
includes all routine administrative functions of any kind; examples
include, but are not limited, to military and civilian personnel
recruitment, hiring, paying, supervision, and management; budgets,
appropriations, and contracts planning, administration, and management;
documents and records preparation, management, and distribution;
investigations, inspections, analyses, and studies planning, execution,
and documentation; educational and public outreach material development
and distribution; and communications, briefs, and staffing actions.
(5) Routine management of buildings, facilities, utilities,
training areas, and ranges in order to support routine use and enable
timely maintenance and repair. This CX includes all management
activities to enable and maintain the full functionality of the site.
(6) Routine morale, welfare, and recreation activities not
involving off-road recreational vehicles.
(7) Deployment of military forces on a temporary duty or training
basis where existing facilities are used for their intended purposes
consistent with the scope and size of existing mission.
(8) Routine travel and movement of personnel, vehicles, watercraft,
aircraft, equipment, and other materiel and commercial goods.
[[Page 70342]]
(9) Approval of asbestos or lead-based paint management plans
drafted in accordance with applicable laws and regulations (REC
required).
(10) Special events and routine community relations events, whether
on or off the installation. These include educational, technical,
advisory, and consultation activities where the Army engages with
communities, government, private organizations and individuals,
federally-recognized Indian tribes, and the general public. Such events
include for example, ceremonies, funerals (to include state funerals),
open houses, town halls, air shows, athletic events, flyovers, Earth
Day events, and concerts. (REC required for air shows and flyovers).
(11) Temporary closure or temporary restriction of access to roads,
trails, recreational areas, and/or any lands within the boundaries of a
military installation or within DoD real estate lease agreement land
holdings in order to protect human or animal life, other natural or
cultural resources, or for military training or security/law
enforcement purposes (REC required).
(12) Reductions and realignments of civilian and/or military
personnel that fall below the thresholds for actions reportable to
Congress, as prescribed by statute (for example, 10 U.S.C. 2687(a)(2)
and 10 U.S.C. 993). This includes reorganizations and reassignments
with no changes in force structure, unit redesignations, and routine
administrative reorganizations and consolidations. (REC required when
the net change in military and civilian authorizations at a military
installation meets the threshold for forwarding a stationing package to
the DCS, G-3/5/7).
(13) Relocation of personnel into existing federally-owned (or
state-owned in the case of ARNG) or commercially-leased space. (REC
required when the net change in military and civilian authorizations at
a military installation meets the threshold for forwarding a stationing
package to the DCS, G-3/5/7).
(14) An Army action occurring on another military service's
property where the action qualifies for a CX of that military service,
or for actions on property designated as a Joint Base or Joint Region
that qualifies for a CX of any of the military services included as
part of the Joint Base or Joint Region. When the Army proponent chooses
to use another military service's CX to cover a proposed action, the
proponent must have written confirmation that the other service does
not object to using their CX to cover the Army action. The Army
proponent will include that written confirmation in the administrative
record for the proposed action. The Army official making the CX
determination must ensure the application of the CX is appropriate and
that the Army proposed action was a type contemplated when the CX was
established by the other service, and that no extraordinary
circumstances exist. (REC required).
(15) An Army action occurring on another Federal agency's property,
or on property where another Federal agency is operating, that
qualifies for a CX of the other Federal agency. If the Army chooses to
use the other Federal agency's CX to cover the proposed Army action,
the Army proponent must have written confirmation that the other agency
does not object to using their CX to cover the Army action. The Army
proponent will include that verification in the administrative record
for the proposed action. The Army proponent must determine that the
Army action fits within the other Federal agency's CX, is of a similar
type and scope as the action categorically excluded by the other
Federal agency, and no extraordinary circumstances exist. (REC
required).
(c) Construction and demolition. (1) Construction of new,
alteration of existing (to include replacement or upgrades), and
additions to existing buildings, facilities, structures (to include
towers that do not present a collision hazard to military aircraft),
launch pads, utility systems, and communication systems on previously
disturbed land and/or on undisturbed land, provided there are no more
than 5 cumulative acres of surface disturbance to undisturbed land.
(REC required). This does not include construction of facilities
intended primarily for the transportation, distribution, storage,
treatment, and disposal of solid waste, medical waste, and hazardous
waste. The terms ``previously disturbed land'' and ``undisturbed land''
are defined in appendix B, Section II, of this part.
(2) Construction of new and expansion of existing parking lots and
hardening of tank trails and turn pads on previously disturbed land
and/or on undisturbed land, provided there are no more than 5
cumulative acres of surface disturbance to undisturbed land. If a
parking lot design will replicate the pre-development hydrology,
limitation may be extended to 10 acres (REC required). The terms
``previously disturbed land'' and ``undisturbed land'' are defined in
appendix B, Section II, of this part.
(3) Placement and replacement of targetry and other stationary
equipment on existing ranges provided there are no more than 5
cumulative acres of surface disturbance to undisturbed land (REC
required). The term ``undisturbed land'' is defined in appendix B,
Section II, of this part.
(4) Installation of fencing, utility systems, and communication
systems that use existing right-of-way, and installation of airfield
communication and safety equipment (REC required).
(5) Construction, placement, installation, or relocation of
machinery and equipment (for example, analytical laboratory apparatus,
electronic hardware, maintenance equipment, and health and safety
equipment) from another site or structure to the new or altered
building/facility/site, assuming the uses of the relocated items will
be similar to their former uses (REC required).
(6) Demolition of buildings, structures, or other improvements and
disposal of debris therefrom, or removal of a part thereof for
disposal, in accordance with applicable requirements, to include
requirements associated with removal of asbestos, polychlorinated
biphenyls (PCBs), lead-based paint, and other special hazards. For
historic districts, sites, buildings, structures, or objects eligible
for or included in the National Register of Historic Places, all
requirements of the NHPA must be met (REC required).
(7) Road or trail construction on existing rights-of-ways or on
previously disturbed areas to dimensions that meet design standards
that permit safe vehicle operation (REC required).
(8) Construction, in accordance with applicable permits, of new or
improved low water crossing and fording areas on existing trails or
roads used for training purposes, and storm water conveyances for storm
water management, safety, and other purposes. Construction or
improvements must permit the flow of water across the crossing/fording.
Total ground area disturbed per low water crossing area must not exceed
5 acres. (REC required).
(9) Minor renovations and additions, in accordance with applicable
permits, to waterfront facilities, including mooring piles, fixed
floating piers, existing piers, unburied power cables, and maintenance
and replacement of existing oil booms. (REC required).
(10) Actions in unsewered areas on lands within the boundaries of a
military installation or within DoD real estate lease agreement land
holdings involving the replacement of existing small (total capacity
less than approximately 250,000 gallons per day) on-site wastewater and
sewage systems, providing the new on-site systems do not relocate
existing discharge (REC required).
[[Page 70343]]
(11) Construction or installation, to include modification, of
fencing, gates, grates, walls, small enclosures, stakes, signage,
cattle guards, and other small appurtenances or devices (for example,
raptor electrocution prevention devices) attached to the land for the
purposes of security or to otherwise protect human life, animal life,
or other resources.
(12) Construction and modernization of common small arms ranges on
previous or existing range sites in Army training and testing areas
requiring total disturbance of approximately 40 acres or less, without
change to noise contours that would potentially increase noise impacts
to sensitive receptors and without change to existing Surface Danger
Zones (SDZs). This includes the construction of a Range Operations
Control Area, which contains common range support facilities and
parking. This CX also includes the demolition of any old structures on
the previously disturbed sites. Small arms ranges typically include
weapons that fire ammunition that is .50 caliber or less and hand or
launched grenades (REC required).
(13) Reconstruction, repair, restoration, retrofitting, or
replacement of any facility, structure, road, or trail (including
fencing, gates, parking lots, erosion control structures, storm water
control structures, roads, trails, revegetation, removal of debris, or
any other infrastructure improvement), that was in use and operation,
or was under construction, and was damaged or destroyed due to a
natural event, including but not limited to wildfires, floods,
earthquakes, landslides, weather events; or an accident, vandalism, or
an act of terrorism; and which will substantially conform to the
preexisting design, function, and location as the original (REC
required; will include consideration of anticipated temporary
construction impacts).
(d) Cultural and natural resources. (1) Regeneration of an area to
native tree species and other native vegetation species including: Site
preparation; post-fire rehabilitation activities (such as tree
planting, fence replacement, or habitat restoration); timber stand and/
or wildlife habitat improvement activities that do not include the use
of herbicides and do not require more than 1 mile of road construction;
and restoration of wetlands, streams, riparian areas, and other water
bodies. This does not include forestry operations (REC required).
(2) Implementation of hunting and fishing policies or regulations
that are consistent with state and local regulations and Tribal Treaty
rights.
(3) Scientific studies, surveys, data collection, monitoring, and
information gathering activities that are minimally intrusive to the
environment. Examples include, but are not limited to topographic
surveys; bird counts; wetland mapping; use of remote sensing
technologies; geophysical investigations using sonar; inventories,
evaluation, and mitigation for historic properties in accordance with
NHPA; other cultural and natural resource surveys, inventories,
monitoring, and investigations; and geotechnical testing to support
pre-construction investigations and facility design when the
geotechnical testing technology used is minimally intrusive to the
environment (REC required).
(4) Maintenance, repair, and replacement in kind of archaeological,
historical, and endangered/threatened species avoidance markers,
fencing, and signs; and maintenance, repair, and replacement in kind of
existing fencing to provide improved wildlife ingress and egress.
(5) Update and implementation of Integrated Natural Resources
Management Plans (INRMPs) and Integrated Cultural Resources Management
Plans (ICRMPs), where plan update and implementation activities are
similar in type, scope, and intensity to those currently allowed and
result in no new adverse effects on the environment (REC required).
(6) Actions to find, contain, and eradicate localized populations
of invasive species using control mechanisms listed in the installation
Integrated Pest Management Plan (IPMP), provided the invasive species
control mechanism affects an area 250 cumulative acres or less in size
(REC required).
(7) Forestry and associated operations focused on the harvest of
live trees not to exceed 70 acres. Salvage of dead or dying trees (and
adjacent live trees) not to exceed 250 acres to control disease or the
spread of insect infestation. Associated operations include no more
than 0.5 mile of temporary road construction, and seeding or
reforestation of timber areas (REC required).
(8) Prescribed burning not to exceed 4,500 acres per prescribed
burn project, and mechanical vegetation removal not to exceed 1,000
acres per vegetation removal project, for the purposes of: Reducing the
risks and severity of wildland fires and fires resulting from Army
mission activities; and enhancing the biodiversity, stability, and
productivity of the natural environment (REC required).
(e) Procurement and product modifications. (1) Routine procurement
of goods and other services (complying with applicable procedures for
procurement of sustainable goods and services) to support operations
and infrastructure, and routine utility services and contracts.
(2) Procurement, installation or replacement, or operation of
utility and communication systems, mobile antennas, data processing
equipment and similar electronic equipment, that use existing right-of-
way, easement, distribution systems, and/or facilities (REC required).
(3) Conversion of commercial activities under the provisions of AR
5-20, Competitive Sourcing Program (for example, conversion of
commercial RDT&E activities for military equipment). This includes only
those actions that do not change the actions or the missions of the
organization or alter the existing land use patterns.
(4) Modification, product improvement, or configuration engineering
design change to materiel, structure, item, equipment, or system that
does not change the original impact of the materiel, structure, item,
equipment, or system on the environment (REC required).
(5) Procurement, testing, use, and/or conversion of a commercially
available product or non-developmental item (defined in Appendix B,
Section II of this part; for example, forklift, chain saw, security
monitoring equipment, software, automobile, commercially-available
heavy equipment, etc.) that does not result in any unusual disposal
requirements.
(6) Acquisition or contracting for spares and spare parts,
consistent with the approved Technical Data Package (TDP).
(7) Modification and adaptation of commercially available products
and non-developmental items for military application (for example,
sportsman's products and wear such as holsters, shotguns, side arms,
protective shields, clothing, backpacks, etc.), as long as
modifications do not alter the normal impact to the environment from
similar military equipment (REC required).
(8) Adaptation of non-lethal munitions and restraints from law
enforcement suppliers and industry (for example, rubber bullets, stun
grenades, and smoke bombs) for military police and crowd control
activities where there is no change from the original product design
and there are no unusual disposal requirements; the development and use
by the military of non-lethal munitions and restraints that are similar
to those used by local police forces and
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in which there are no unusual disposal requirements (REC required).
(f) Real estate transactions. (1) Grants, acquisitions, or
terminations of leases, licenses, easements, permits for use of real
property or facilities, and land withdrawal continuances or extensions
that merely establish time periods in which there is no significant
change in land or facility use (REC required).
(2) Disposal of excess easement areas to the underlying fee owner
(REC required).
(3) Transfer of real property administrative control within the
Army, to another military department, or to other Federal agency,
including the return of public domain lands to the Department of
Interior, and reporting of property as excess and surplus to the
General Services Administration (GSA) for disposal (REC required).
(4) Transfer of active installation utilities to a commercial or
governmental utility provider, except for systems on property that has
been declared excess and proposed for disposal (REC required).
(5) Acquisition of real property (including facilities) where the
land use will not change substantially, or where the land acquired will
not exceed 40 acres and the use will be similar to Army activities on
adjacent land (REC required).
(6) Disposal of real property (including facilities) by the Army
where the reasonably foreseeable use will not change significantly (REC
required).
(7) Agreements entered into with an eligible entity or entities
under the Army Compatible Use Buffer (ACUB) program, in accordance with
10 U.S.C. 2684 or under other applicable authorities, that address the
use or development of real property in the vicinity of, or ecologically
related to, a military installation or military airspace for purposes
of limiting development of the property that would be incompatible with
the mission of the military installation and/or for preserving habitat
and cultural resources on the property that may eliminate or relieve
current or anticipated restrictions on military testing, training or
operations and for which there is no significant change of land use
(REC required).
(g) Maintenance, repair, and infrastructure operations. (1) Routine
repair and maintenance of buildings, facilities, launch pads,
structures, utility/communication systems, airfields, grounds, parking
areas, targetry and other stationary equipment on existing ranges, and
fencing; includes associated components and equipment. Examples
include, but are not limited to custodial services performed on
existing facilities, removal and disposal of asbestos-containing
material (for example, roof material and floor tile) or lead-based
paint; in accordance with applicable regulations; removal of dead,
diseased, or damaged trees; and repair of roofs, doors, windows, or
fixtures (REC required for removal and disposal of asbestos-containing
material and lead-based paint. REC required for work on structures
eligible for or listed in the National Register of Historic Places
where impacts to such environmentally sensitive resources have been
resolved in accordance with NHPA Section 106 regulatory procedures).
(2) Routine repairs and maintenance of existing roads, trails, and
firebreaks. Examples include, but are not limited to, grading and
clearing the roadside of brush with or without the use of herbicides;
resurfacing a road to its original conditions; pruning vegetation;
removal of dead, diseased, or damaged trees; replacing or cleaning
culverts; and conducting minor soil stabilization activities.
(3) Routine installation, repair, and maintenance of equipment and
vehicles (for example wheeled vehicles, tractors, lawn equipment,
airfield equipment [such as runway visual range equipment and visual
approach slope indicators], and military vehicles, equipment, and
systems) that is substantially the same as that routinely performed by
private sector owners and operators of similar equipment and vehicles.
This does not include depot maintenance of unique military equipment.
(4) Repair and maintenance (including replacement and upgrade of
parts), and decontamination operations for military equipment conducted
at existing enclosed facilities, to include contractor-operated/owned
enclosed facilities, consistent with previously established safety
levels and in compliance with applicable Federal, state, and local
requirements (REC required if proposed action entails a new/modified
repair/maintenance operation affecting equipment containing munitions,
explosives, or hazardous material, and the operation was not
implemented at the enclosed facility during the preceding 5 years; REC
required if the proposed action necessitates a new permit or change in
an existing permit).
(5) Land repair and maintenance projects for the purpose of
mitigating the effects of military training exercises. Examples
include, but are not limited to: Soil stabilization through
revegetation; installing and maintaining erosion control measures;
gulley and ravine stabilization; control of invasive vegetation;
maintenance of existing structures such as culverts, terraces, and
sediment control structures; and maintenance of improved surfaces that
are part of the training landscape (REC required).
(6) Routine maintenance of streams and ditches or other rainwater
conveyance structures and erosion control and storm water control
structures (REC required).
(7) Development, adoption, update, and implementation of an
installation pesticide, fungicide, herbicide, insecticide, and
rodenticide-use program and plan (IPMP). The IPMP will provide for
application of substances approved for use by the appropriate
regulating agency when the application of such substances is
implemented in accordance with the manufacturer's label directions, the
IPMP, and INRMP as applicable. (REC required). This categorical
exclusion does not apply to implementation of aerial spraying.
(8) Closure, decommissioning, mothballing, disconnection, and
similar discontinued use of facilities, equipment, vehicles, aircraft,
watercraft, and utility and communication systems, whether temporary or
permanent (REC required).
(h) Waste, hazardous materials, hazardous waste, and excess
material and equipment. (1) Use of gauging devices, analytical
instruments, and other devices containing sealed radiological sources;
use of industrial radiography; use of radioactive material in medical
and veterinary practices; possession of radioactive material incident
to performing services such as installation, maintenance, leak tests,
and calibration; use of uranium as shielding material in containers or
devices; and radioactive tracers (REC required).
(2) Immediate responses in accordance with emergency response plans
(for example, Spill Prevention, Control, and Countermeasure Plan
(SPCCP)/Installation Spill Contingency Plan (ISCP), and Chemical
Accident and Incident Response Plan) for release or discharge of oil,
hazardous materials or hazardous substances; and emergency actions
taken by Explosive Ordnance Demolition (EOD) detachment or Technical
Escort Unit.
(3) Sampling, surveying, well drilling and installation, analytical
testing, site preparation, and intrusive testing to determine if
hazardous wastes, contaminants, pollutants, or special hazards are
present (REC required). No REC required for CERCLA responses or RCRA
corrective actions.
[[Page 70345]]
(4) Routine management to include the use of hazardous material or
waste inventory management systems, transportation, distribution, use,
storage, treatment, disposal, recycling, and other waste management
activities for solid waste, hazardous waste, medical waste,
radiological waste, and special hazards.
(5) Reutilization, marketing, distribution, donation, and resale of
items, personal property, equipment, and materiel, to include normal
transfer of items to the Defense Logistics Agency; items, personal
property, equipment, and materiel that have been contaminated with
hazardous materials or wastes but will be adequately cleaned and will
conform to the applicable regulatory agency's requirements.
(i) Training; research, development, engineering, testing,
evaluation, and demonstration; manufacturing operations, and human
systems integration. (1) Training entirely of an administrative or
classroom nature.
(2)(i) Military training, materiel testing, and materiel fielding
activities conducted in or on existing military structures, ranges,
maneuver areas, and training areas that are:
(A) Compatible with the current use of existing military
structures, ranges, maneuver areas, and training areas;
(B) Similar in type, intensity, and setting to ongoing military
activities; and
(C) Are conducted in accordance with applicable plans and standard
operating procedures protective of the environment.
(ii) This categorical exclusion includes: Use of existing SDZs and
impact areas; emergency response training; use of missile, rocket and
artillery-type projectiles; survivability and vulnerability testing;
safety and engineering drills; training exercise modification on a
Military Operations in Urban Terrain site or in a shoot house;
simulated war games (in existing structures); and on-post tactical and
logistical exercises involving brigade size units or smaller (REC
required).
(3) Intermittent on-post training activities (or off-post training
covered by an ARNG land use agreement) that involve no live fire or
vehicles off established roads or trails. Uses include, but are not
limited to, land navigation, physical training, FAA approved aerial
overflights, and small unit level training.
(4) Flying activities, to include manned and unmanned aerial
vehicle (UAV) flights, and other airspace use activities (for example,
missile and projectile flights) in compliance with FAA regulations and
in accordance with normal flight patterns and elevations for that
facility/installation.
(5) Infrequent and temporary increases in air operations that do
not exceed 50 percent of the typical installation aircraft operations
rate or 50 additional operations per day. Repetitive use of this CX
requires further analysis to determine there are no cumulative impacts.
(REC required).
(6) Operation of small arms ranges on Army lands of approximately
40 acres or less in size, without change to noise contours that would
potentially increase noise impacts to sensitive receptors and/or
without change to existing SDZs, if operation includes appropriate
monitoring for potential off-range impacts (for example, under the
Operational Range Assessment Program or similar procedures). Small arms
ranges typically include weapons that fire conventional ammunition that
is .50 caliber or less and hand or launched grenades. Includes
operation of existing recreational small arms ranges on installations.
(REC required).
(7) Routine operation and use of radar, sonar, laser, telemetry,
and other systems that make use of the electromagnetic spectrum for
detection, tracking, navigation, range-finding, targeting,
communications, or other military purposes, within the boundaries of a
military installation, boundaries of a DoD real estate lease agreement
land holding, and/or existing airspace currently used for military
training. Operation must conform to current American National Standards
Institute/Institute of Electrical and Electronics Engineers guidelines
for maximum permissible exposure to electromagnetic fields (REC
required).
(8) Research (basic and applied), testing, other RDT&E production/
repair operations, and manufacturing operations conducted at existing
enclosed facilities to include contractor-operated/owned laboratories
and other enclosed facilities, consistent with previously established
safety levels (REC required if the proposed action involves the use of
munitions and explosives of concern or hazardous material and the
constituent was not used at the enclosed facility during the preceding
5 years, or if the proposed action is expected to release radiation).
(9) New activities conducted at established laboratories or
manufacturing and maintenance facilities (including contractor-operated
laboratories and facilities) of a similar type, nature, and scope as
the prior or existing activities on the facility.
(10) Testing, evaluation, and demonstration of Soldier equipment,
to include the operator, maintainer, and supporter, and support
facilities, that provide for protection of the Soldier and the delivery
of required ammunition, cargo, unit equipment, and shelters. Soldier
support activities include the transportability testing of mobile
facilities that include evaluation of weight, center of gravity, tilt
table, and lane change, initial inspection, safety, weight, rail
impact, mobility testing, drop test, and final inspection. Testing also
includes evaluation of the Lightweight Chemical-Biological Protection,
including collective protection and detection equipment, to determine
the durability of the Soldier-worn materials and to gain wearability
data, including mock training exercises (REC required).
(11) Testing, evaluation, and demonstration of small-scale Army
equipment with similar constituents and use as commercially available
equipment (for example, backpacks, batteries, radios, flashlights,
helmets, clothing, shoes, Global Positioning Systems, containers, test
kits, respirators, netting, tents, stretchers, splints, and medical
equipment).
(12)(i) Flight testing, evaluation, and demonstration of surface-
to-surface, air-to-surface, surface-to-air, and air-to-air rockets,
missiles, and medium and large caliber ammunition or artillery-type
projectiles where:
(A) The projectile launch, flight, landing, and vehicle/payload
recovery occurs solely within the boundaries of a military installation
or within DoD real estate lease agreement land holdings;
(B) The entire flight from launch to landing occurs over an
established range designated for testing of such projectiles;
(C) Landing and recovery, when feasible, of boosters, (surface)
projectiles, payload, aerial targets and/or related debris occurs
within a designated impact area (such as a warhead impact target area);
and
(D) Recovery operations will be coordinated with explosive ordnance
disposal (EOD) personnel to ensure test debris is rendered harmless to
human health and safety prior to recovery.
(ii) This CX does not apply to the testing, evaluation, or
demonstration of projectiles with payloads designed to release
radiological, nuclear, and high-yield explosives or other types of
payloads that could cause significant threat to human health and/or the
environment if released (REC required).
(13) Testing, evaluation, and demonstration of man portable,
individual, and crew-served weapons systems used principally against
personnel and lightly armored targets, to
[[Page 70346]]
include both ballistic and non-ballistic systems and associated
ordnance, munitions, aiming, powering, storage, training, specialized
maintenance equipment, logistic support, and other ancillary items
where:
(i) The small arms firing occur solely within the boundaries of a
military installation;
(ii) The entire firing occurs over an established range designated
for testing of small arms; and
(iii) Landing and recovery, when feasible, of munitions and/or
debris occurs within a designated impact area (REC required).
(14) Testing, evaluation, and demonstration of mortars on military
installations, including:
(i) General support, weapon system testing, production
qualifications testing, mortar detection and data acquisition, proof
assembly testing, acceptance testing, classification testing, and
mortar technology demonstrations;
(ii) General support for mortars testing requiring small arms
firing, grenade launcher firing, and rocket propelled grenades firing
when launch, flight, and impact occur on designated ranges; or
(iii) Final classification testing, including static functioning of
test items in a boxed and stacked configuration when launch, flight,
and/or impact/detonation occur on designated ranges (REC required).
(15) Automotive testing involving testing, evaluation, and
demonstration of automotive performance, transportability, reliability,
human factors engineering and all applicable human systems integration
domains, rail impact, lift and tie-down, tilt table, braking, steering
and handling, side slopes, longitudinal slopes, gradeability,
acceleration, and standard obstacles. Testing also includes:
(i) Testing mobile equipment which includes weight and center of
gravity, tilt table, and lane change;
(ii) Automotive performance tests accomplished in environmental
chambers or in existing outdoor testing area, including blowing rain
and sand tests and transportability tests (lift provision compression
test, helicopter flight, and rail impact);
(iii) Specific automotive testing measuring for weight, center of
gravity, and moment of inertia, and tire, track, and suspension dynamic
and static properties;
(iv) Testing of automotive trailers for resistance to towing; and
(v) Performance vehicles tested for speed and acceleration,
gradeability and side slopes, standard obstacles, transportability,
fuel consumption, full load cooling, environmental performance, ride
quality, winching, braking, steering and handling, towing
compatibility, human factors, and material handling cranes (REC
required).
(16) Testing, evaluation, and demonstration of robotic vehicles, to
include Unmanned Ground Vehicle (UGV). Testing includes scenarios that:
(i) Test UGVs and Soldiers individually;
(ii) Test the interface between UGVs and Soldiers in mounted and
dismounted maneuvers on existing test grids and training ranges,
including navigation and identification of obstacles, targets, and
hazards;
(iii) Test vehicles on existing test courses and existing improved
surfaces; and
(iv) Test vehicles operating in test chambers while subjected to
environmental conditions (REC required).
(17) Testing, evaluation, and demonstration of UAV and associated
technologies. Testing includes scenarios in which:
(i) The UAV is launched, operated, landed, and recovered solely
within land boundaries of a military installation or within DoD real
estate lease agreement land holdings;
(ii) The entire flight from launch to landing occurs over an
established range designed for testing of such systems;
(iii) The entire flight from launch to landing occurs within DoD
controlled airspace; and
(iv) Landing and recovery of UAVs, and recovery, when feasible, of
associated test materials including munitions occurs within a
designated test range or impact area (REC required).
Subpart D--Environmental Assessments
Sec. 651.13 Introduction.
(a) An EA is intended to facilitate agency planning and informed
decision-making. The analysis should describe the potential extent of
impacts of a proposed action and its alternatives to determine whether
those impacts are significant. The EA is the basis for determining that
impacts would not be significant or that EIS is not necessary.
(b) The length of an EA should be adequate to meet the requirements
of this part, depending upon site-specific circumstances and
conditions.
(c) See Sec. 651.8 for security review and clearance procedures
for NEPA documents.
Sec. 651.14 Actions normally requiring an EA.
The following Army actions may require an EA, unless they qualify
for the use of a CX or are already addressed in an applicable NEPA
document. This list is not binding nor is it all inclusive.
(a) Military construction, including contracts for off-post
construction.
(b) Land use changes.
(c) Actions involving environmentally sensitive resources.
(d) Proposed actions which support system acquisition throughout
the system's lifecycle such as testing, fielding, and other program
events.
(e) Implementation of INRMPs, ICRMPs, Installation Master Plans,
and similar management plans when there may be impacts on the
environment.
(f) Military training and testing activities on land, air, or
water.
(g) An action with significant local or regional effects on energy
or water availability.
(h) Increases in production of hazardous or toxic materials.
(i) Changes to noise patterns that would affect sensitive
receptors.
(j) Changes to established airspace use or restrictions.
(k) Actions with significant local or regional socioeconomic
effects.
(l) Acquisition or construction of (or space for) a facility that
will use hazardous materials, drugs, or biological or radioactive
materials. New use of hazardous materials, drugs, or biological or
radioactive materials in a facility currently not using this material.
(m) Changes in Army-wide doctrine or policy when there may be an
impact on the environment.
Sec. 651.15 Contents of the EA.
EAs will include:
(a) Signature page to document approval of the EA. The signed
signature page accompanies the EA when made available with the Draft
FONSI for public comment.
(b) Purpose. Purpose of and need for the proposed action.
(c) Description. Description of the proposed action.
(d) Alternatives considered. The EA should briefly identify and
describe the alternatives carried forward for analysis, including the
``No Action'' alternative and all other appropriate and reasonable
alternatives that can accomplish the purpose and need for the proposed
action. The discussion of alternatives should discuss why any
alternatives were eliminated from full consideration.
(e) Affected environment. The EA must address or adopt by reference
the general conditions and nature of the affected environment and
establish the environmental setting against which environmental effects
are evaluated. This should include any relevant general baseline
conditions for those resources analyzed.
[[Page 70347]]
(f) Environmental consequences. The EA must address the effects
(direct, indirect, and cumulative) of the proposed action and its
alternatives on the environment. Discussion and comparison of impacts
must provide sufficient analysis to reach a conclusion regarding the
intensity of the impacts and whether any are significant. The EA will
set out the threshold or criteria for each resource for a determination
that a significant impact would occur. The EA analysis procedures must
be sufficiently rigorous to identify and analyze impacts that could be
individually or cumulatively significant. The EA must identify when
information is incomplete or unavailable, and will address the missing
information in substantially the same way as prescribed for EISs (see
Sec. 651.21).
(g) Mitigation. The EA must identify what practical mitigation
measures are available to reduce, avoid, minimize, rectify, compensate
or eliminate identified adverse effects (see subpart F of this part).
If applicable, the EA must clearly identify any mitigation measures
that would be required to reduce an impact to less than significant.
Proponents are encouraged to identify existing procedures or
requirements that will be implemented as part of the proposed action
and serve to mitigate adverse effects. When mitigation is a component
or factor of the proposed action (e.g., mitigation by design), it
should be so identified in the EA.
(h) Conclusion. The EA will provide a clear statement regarding
whether or not the described impacts of the proposed action and
alternatives are significant and whether or not any of the conclusions
of less than significant are dependent upon mitigation measures being
implemented. The EA will explain the next steps in the decision-making
process, specifically identifying whether the outcome of the EA will be
a FONSI or an NOI to prepare an EIS.
(i) List of analysts/preparers and agencies and persons consulted.
Copies of correspondence with agencies and persons contacted during the
preparation of the EA will be available in the administrative record
and may be included in the EA as appendices. When operational security
concerns require, the information specified in this paragraph may be
omitted.
(j) References. References and appendices (as appropriate).
(k) Public and agency involvement. The EA will include a summary of
the past public and agency involvement in the NEPA process for the
proposed action and a summary of instructions for commenting on the EA
and draft FONSI. The instructions for commenting will include the
public comment time period, due date for comments, and contact
information for inquiries and comment submissions. The content of the
appropriate public notice for the EA, as well as the body of the EA
itself, will state where the EA and draft FONSI will be available to be
accessed during the public comment period. If the EA included a
Cooperating Agency, the agency will be identified.
Sec. 651.16 Contents of the FONSI.
(a) The FONSI briefly states why a proposed action will not
significantly affect the environment and that an EIS will not be
prepared. The FONSI includes summaries of information taken into
account by the approving official. The FONSI should adopt the EA's
discussion by reference.
(b) The draft FONSI will accompany the signed EA when made
available for public comment. The draft FONSI must contain the
following:
(1) The name of the proposed action and a reference to the EA for
which the FONSI is issued. The FONSI should specifically state that it
adopts the EA by reference.
(2) A brief description of the proposed action and alternatives
analyzed in the EA.
(3) A summary and short discussion of the anticipated environmental
effects of the proposed action, alternatives, and the no action
alternative, and a determination of whether any of the impacts are
significant.
(4) Identification of any mitigation measures that are necessary to
reduce impacts to less than significant. The FONSI shall state the
means of and authority for any mitigation that the proponent has
adopted, any applicable monitoring or enforcement provisions, and any
enforceable mitigation requirements or commitments that will be
undertaken to avoid significant impacts.
(5) When mitigation is a component or factor of the proposed action
(e.g., mitigation by design), it should be so identified in the FONSI.
(6) A brief discussion of public involvement and agency
coordination/consultation.
(7) A declaration that the determination made in the draft FONSI is
a preliminary determination, and that no final determination will be
made until all comments submitted by the end of the public comment
period have been considered.
(8) The approving official's signature block (unsigned).
(c) The final FONSI will be prepared following the public comment
period. The final FONSI must contain the following:
(1) All items specified in paragraphs (b)(1) through (6) of this
section, and the approving official's signature and date of signature.
(2) A statement that a FONSI is still appropriate following review
of public comments and (if applicable) that the analysis of any new
information that has come to the attention of the approving official
since completion of the EA indicates no supplementation of the EA is
necessary. If this statement cannot be made, the proponent must either
supplement the EA and republish it or publish an NOI and proceed with
an EIS. The proponent can also decline to pursue the proposed action.
(3) The proponent may proceed with the proposed action once the
FONSI is signed.
Sec. 651.17 EA review process.
(a) An EA may result either in a FONSI, an NOI to prepare an EIS,
or a determination not to pursue the proposed action.
(b) At any time during the EA process, when it is determined that
the proposed action may have significant impacts that cannot be
mitigated to level below significance, an NOI to prepare an EIS may be
initiated. In this case, an EA in preparation need not be completed.
The proponent should notify the approving official of any such
determination as soon as possible. See Sec. 651.22(c) for guidance on
preparing the NOI.
(c) The EA and draft FONSI will be made available to the public for
30 days.
(1) The 30-day period begins on the date that a public notice is
published indicating the EA and draft FONSI are available for review.
For actions of local or regional interest, the public notice regarding
the availability of the EA and draft FONSI will be published in the
appropriate local or regional media.
(2) The public notice must specify the deadline date for receipt of
comments and describe the steps required to obtain the EA and draft
FONSI. This can include a POC, address, and phone number; a location; a
reference to a website; or some equivalent mechanism.
(3) In cases where a 30-day review period creates an unacceptable
risk to national security concerns, the review period may be shortened
by the proponent. In no circumstances should the public comment period
for an EA/draft FONSI be less than 15 days.
(d) If the proposed action is nationwide in scope and of national
concern, the availability of the EA and draft FONSI may be published in
the FR, subject to DASA ESOH approval.
[[Page 70348]]
The FR publication package must be submitted in accordance with Sec.
651.25.
(e) Distribution of the EA and draft FONSI should include any
agencies, organizations, and individuals that have expressed interest
in the project, those who may be affected, and others deemed
appropriate.
(f) The proponent is responsible for the distribution of the EA and
draft FONSI package and consideration of review comments received.
Public and inter-agency meetings may be held if the proponent
determines that such meetings are needed and appropriate.
Subpart E--Environmental Impact Statements
Sec. 651.18 Introduction.
(a) An EIS is a tool to facilitate a full, open, and balanced
discussion of significant environmental impacts that may result from a
proposed action and alternatives, allowing public review and comment on
the proposal and providing a basis for informed decision-making. See
Sec. 651.6(b) for more information on levels of NEPA review.
(b) An EIS may be required when the proponent reasonably believes
that the proposed action has:
(1) Potential for significant impact on the human environment,
either on its own or when its impacts are combined with those of other
actions.
(2) Potential for significant threat or hazard to public health or
safety.
(3) Potential for controversy regarding the factual evidence
pertaining to the effects of the proposed action on the environment.
(c) Proponents will apply NEPA optimizing measures to EIS actions
Sec. 651.4(e).
(d) Proponents see Sec. 651.8 for security review and clearance
procedures for NEPA documents.
Sec. 651.19 Actions normally requiring an EIS.
The following actions normally require an EIS. The threshold for
significance is a matter of context and intensity and will vary between
installations. This list is not binding nor is it all inclusive.
(a) Substantial expansion of military facilities and
infrastructure.
(b) Construction that has the potential for a significant effect on
``environmentally sensitive'' resources as described in Sec.
651.11(c).
(c) The disposal of nuclear materials, munitions, explosives,
industrial and military chemicals, and other hazardous or toxic
substances that have the potential to cause significant environmental
impacts.
(d) Major land acquisitions, leasing, or other actions that may
lead to significant changes in land use.
(e) Stationing of a brigade or larger unit, except where the only
significant impacts are socioeconomic.
(f) Major training exercises or testing activities with potential
for new and adverse environmental impacts.
(g) Changes in the mission, unit structure, or facilities with
potential for significant environmental impacts.
(h) Initial public land withdrawals of over 5,000 acres.
Sec. 651.20 Contents of the EIS.
(a) Cover sheet. The cover sheet will include:
(1) A list of responsible agencies including the lead agency and
any cooperating agency, if applicable.
(2) The title of the proposed action and, if appropriate, the
titles of related cooperating agency actions, together with state and
installation, municipality, or other local designation where the action
is located.
(3) A designation of the statement as a draft, final, or draft or
final supplement.
(4) Date completed.
(b) Administrative information. (1) The address for submission of
comments and inquiries, the telephone number for inquiries, and, as
appropriate, the name and title of the approving official.
(2) A one-paragraph abstract of the statement that describes the
purpose and need for the proposed action, alternatives, the significant
environmental consequences of the proposed action and alternatives, and
mitigation measures.
(3) In the case of a Draft Environmental Impact Statement (DEIS),
the date by which comments must be received, computed in accordance
with the minimum public comment period prescribed herein, will be
included in the instructions for commenting.
(c) Summary. The purpose of the summary is to provide a brief
overview of the purpose and need for the action, alternatives
considered, environmental impacts, areas of controversy, mitigation
measures, and issues yet to be resolved. The summary will also contain
a synopsis of state and Federal consultations and permit requirements
and their status.
(d) Table of contents. The table of contents should include a
sequential list of the EIS's organizational structure (e.g., chapter
and/or section numbers and headings), figures, tables, and appendices;
and the associated starting page number of each item listed. The
electronic version of the Draft and Final EIS filed with EPA and made
available to the public will meet related requirements noted in EPA's
EIS filing protocols regarding enabling a reader to find specific
document sections (e.g., bookmarking feature) rapidly.
(e) Purpose of and need for the proposed action. This section
should clearly state the nature of the problem or need to which the
proponent is responding.
(f) Description of the proposed action and any alternatives carried
forward for analysis, including the no action alternative. This section
will include:
(1) A discussion on how the proposed action and the range of
alternatives would solve the problem or fulfill the need.
(2) The relevant background information on the proposed action; its
operational, social, economic, and environmental objectives, and its
benefits. If a cost-benefit analysis has been prepared for the proposed
action, it may be included here, or attached as an appendix and
referenced here.
(3) All reasonable alternatives, including the no action
alternative. The Army will identify the preferred alternative or
alternatives, if one or more exists, in the DEIS and identify such
alternative in the FEIS unless another law prohibits the expression of
such a preference. List any alternatives that were eliminated from
detailed study, and include a brief discussion of the reasons for which
each alternative was eliminated.
(4) A description of environmental management practices and
measures that are currently in effect and are therefore considered part
of the proposed action and alternatives, and will serve to minimize,
mitigate, or eliminate adverse effects.
(5) A list of anticipated state and Federal permits and other legal
requirements.
(g) Affected environment (baseline conditions) that may be
impacted. This section will contain information about existing
conditions in the affected areas in sufficient detail to understand the
potential effects of the alternatives under consideration. Affected
elements could include, for example, biophysical characteristics
(ecology and water quality); land use and land use plans;
architectural, historical, and cultural amenities; utilities and
services; and transportation. This section will not be encyclopedic. It
will be written clearly and the degree of detail for points covered
will be related to the magnitude of expected impacts. Information on
baseline conditions may be adopted by reference where appropriate.
[[Page 70349]]
(h) Environmental consequences and mitigation measures. This
section forms the scientific and analytic basis for the comparison of
impacts. The environmental impacts of the alternatives should be
presented in comparative form, thus sharply defining the issues and
providing a clear basis for choice among the options that are provided
to the approving official and the public. For each resource area, the
threshold for significance should be set out. The information should be
summarized in a brief, concise manner including graphics, and tabular
or matrix formats. The following areas will be covered:
(1) Direct effects (short-term and long-term) and their
significance.
(2) Indirect effects (short-term and long-term) and their
significance.
(3) Possible conflicts between the proposed action and existing
land use plans, policies, and controls.
(4) Energy requirements and conservation potential of various
alternatives and mitigation measures.
(5) Irreversible and irretrievable commitments of resources
associated with the proposed action.
(6) Relationship between short-term use of the environment and
maintenance and enhancement of long-term productivity.
(7) Urban quality, historic and cultural resources, and design of
the built environment, including the reuse and conservation potential
of various alternatives and mitigation measures.
(8) Cumulative effects of the proposed action in light of other
past, present, and reasonably foreseeable actions.
(9) Means to mitigate adverse environmental effects (see subpart F
of this part).
(10) The extent to which adverse effects would remain after
application of identified mitigation measures.
(11) The analysis will address impacts to all resources, including
impacts which are less than significant. Discussion and comparison of
impacts should provide sufficient analysis to reach a conclusion
regarding the significance of the impacts, and not merely be a
quantification of facts. Mitigation measures whose implementation forms
the basis of any ``less than significant'' conclusion should be so
identified.
(12) The analysis will address circumstances where mitigation of
adverse environmental effects is not technically, financially, or
otherwise feasible. The analysis will explain why mitigation of adverse
environmental effects is not feasible and the loss of environmentally
sensitive resource(s) without mitigation measures is acceptable
relative to the importance of the proposed action to national policy
and national defense.
(i) Conclusions. The EIS will clearly state the conclusions of the
environmental consequences analysis, to include a summary of mitigation
measures.
(1) The EIS will provide a comparative presentation of the
environmental consequences of all alternatives analyzed.
(2) To simplify consideration of complex relationships, the summary
of proposed mitigation measures shall include a table format
presentation or refer to a distinct and unambiguous mitigation and
monitoring plan that is part of the EIS.
(3) To simplify consideration of mitigation measures and to improve
tracking, the summary of proposed mitigation measures will include a
table format presentation.
(j) Public and agency involvement. A summary of public and agency
involvement in the EIS process, both past and future, as appropriate,
will be provided in the Draft and Final EIS. Past involvement would
address, for example, public scoping. Future involvement documented in
the Draft EIS would succinctly address, for example, public meetings
and the opportunity to submit written comments.
(k) Other environmental statutes. The Draft and Final EIS will
summarize the requirements for and status of compliance under other
environmental statutes that would have to be completed prior to
implementing the proposed action or alternatives. This summary should
be presented in the discussion for each resource area. The Final EIS
should document (in an appendix) the results of required compliance
under other statutes.
(l) The Final EIS will document (in an appendix) public and agency
comments received as part of the Draft EIS public comment period.
Comments will be clearly credited to the appropriate entity (e.g.,
commenting organization or individual with personal information such as
physical address, email address, and phone number removed). The Final
EIS will document the Army's response to the issues raised. Where
possible, similar comments will be grouped for a common response.
(m) Signature page. The Draft and Final EIS will be signed by the
approving official.
(n) List of preparers. The EIS will list the names of its
preparers, including those people who were primarily responsible for
preparing (research, data collection, and writing) the EIS or
significant background or support papers, and basic components of the
statement. When possible, the individuals who are responsible for a
particular analysis, as well as an analysis of background papers, will
be identified. If some or all of the preparers are contractors'
employees, they must be identified as such.
(o) Distribution list. For the DEIS, a list will be prepared
indicating from whom review and comment is requested. The list will
include public agencies, private parties or organizations, federally-
recognized Indian Tribes, Native Alaskans, and Native Hawaiians.
(p) References. References and appendices (as appropriate).
Sec. 651.21 Incomplete or unavailable information.
When the proposed action will have significant adverse effects on
the human environment, and there is incomplete or unavailable
information, the EIS will make clear that the information is lacking,
and will address the issue as follows:
(a) If the incomplete information relevant to reasonably
foreseeable significant adverse impacts is essential to a reasoned
choice among alternatives and the overall costs of obtaining it are not
exorbitant, the Army will include the information in the EIS.
(b) If the information relevant to reasonably foreseeable
significant adverse impacts cannot be obtained because the overall
costs of obtaining it are exorbitant or the means to obtain it are not
known (for example, the means for obtaining it are beyond the state of
the art), the EIS will include:
(1) A statement that such information is incomplete or unavailable.
(2) A statement of the relevance of the incomplete or unavailable
information to evaluating the reasonably foreseeable significant
adverse impacts on the human environment.
(3) A summary of existing credible scientific evidence that is
relevant to evaluating the reasonably foreseeable significant adverse
impacts on the human environment.
(4) An evaluation of such impacts based upon theoretical approaches
or research methods generally accepted in the scientific community.
Sec. 651.22 EIS process.
(a) Purpose and need. The first step in preparing an EIS is to
articulate the purpose and need for the proposed action.
(b) Public participation plan. A public participation plan that
provides for periodic interaction with the
[[Page 70350]]
community should be developed. The proponent is responsible for
ensuring information is provided to members of the public regarding
where they can obtain information about the ongoing action.
(c) NOI. The NOI initiates the formal scoping process and its
preparation is the responsibility of the proponent.
(1) Prior to preparing an EIS, an NOI will be published in the FR
in accordance with Sec. 651.25 and, as appropriate, in media outlets
with general circulation in the areas potentially affected by the
proposed action. After the NOI is published in the FR, copies of the
notice may also be distributed to agencies, organizations, and
individuals, as the proponent deems appropriate.
(2) The NOI will clearly state the purpose and need, describe the
proposed action and alternatives, and state why the action may have
unknown and/or significant environmental impacts.
(d) Lead and cooperating agency determination. As soon as possible
after the decision is made to prepare an EIS, the proponent will ensure
contact is made with appropriate Federal, tribal, state, and local
agencies to identify lead or cooperating agency responsibilities
concerning EIS preparation.
(e) Scoping. The proponent will begin the scoping process. Portions
of the scoping process may take place prior to publication of the NOI.
(1) As part of the scoping process, determine whether to hold
public meetings.
(2) Scoping 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.
(3) The extent of the scoping process, including public
involvement, will depend on several factors. These factors include, but
are not limited to:
(i) The size and type of the proposed action.
(ii) Whether the proposed action is of regional or national
interest.
(iii) Degree of possible environmental controversy.
(iv) Geographic range of the affected environmental parameters.
(v) Extent of prior environmental compliance reviews.
(vi) Involvement of any substantive time limits.
(vii) Requirements of other laws for environmental review.
(viii) Anticipated cumulative impacts.
(f) NOA publication. Upon completion of the DEIS, a NOA will be
published in the FR in accordance with Sec. 651.25.
(1) Following approval of the publication package, the proponent
will provide the DEIS to EPA for filing and notice in the FR in
accordance with EPA procedures.
(i) The EPA publishes a weekly notice of EISs filed with EPA during
the preceding week. The EPA's notice provides the date by which the
comment period ends for each Draft EIS listed. Unless requested
otherwise by the Army, and based upon compelling reasons of national
policy after consultation with EPA, the comment period end date is
calculated based upon the date EPA's notice is published.
(ii) EPA reviews the DEIS and provides an assessment.
(2) Publication of the Army's approved NOA in the FR will occur at
the same time as the FR publication of EPA's weekly notice.
(3) The DEIS is distributed simultaneously with publication of the
NOA in the FR.
(g) Public review and participation. (1) The following time
periods, calculated from the publication date of the FR notice, will
generally be observed:
(i) Not less than 45 days for public comment on DEISs.
(ii) Not less than 15 days for public availability of DEISs prior
to any public meeting on the DEIS.
(iii) See Sec. 651.22(k) for time period limitations regarding a
decision on the proposed action.
(2) The proponent may also set time limits for other procedures or
decisions related to DEISs and FEISs.
(h) Public meetings or hearings on the DEIS. If appropriate, hold
public meetings or hearings on the DEIS. Media releases to publicize
the meetings or hearings should be issued at least 15 days prior to the
meeting. If the public is invited to provide verbal comments on the
DEIS at the meeting or hearing, the comments will be recorded verbatim.
If public involvement requirements associated with laws and regulations
other than NEPA are integrated with a public meeting or hearing on the
DEIS (e.g., 36 CFR 800.2(d)(1) through (3) for public involvement under
the NHPA), the media release should identify these additional elements.
(i) The FEIS. (1) Following the public comment period, the
proponent is responsible for preparation of the FEIS.
(i) If the changes to the DEIS are exclusively clarifications or
minor factual corrections, a document consisting of only the DEIS
comments, responses to the comments, and errata sheets may be prepared
and circulated. If such an abbreviated FEIS is anticipated, the DEIS
should contain a statement advising reviewers to keep the document so
they will have a complete set of final documents. The final EIS to be
filed with EPA will consist of a complete document containing a new
cover sheet, the errata sheets, comments and responses, and the text of
the DEIS.
(ii) If substantial modifications are warranted, the proponent will
ensure a complete FEIS is prepared. The FEIS distribution must include
any person, organization, or agency that submitted substantive comments
on the DEIS. The Army will identify the preferred alternative or
alternatives in the FEIS unless another law prohibits the expression of
such a preference.
(2) Coordination, approval, filing, and public notice of an FEIS
are the same as for a draft DEIS.
(j) Changes during preparation. If there are substantial changes in
the proposed action, or significant new information relevant to
environmental concerns during the proposed action's planning process,
the proponent will prepare revisions or a supplement to the NEPA
document or prepare new documentation or supplemental information as
necessary.
(k) Decision. No decision will be made on a proposed action until
30 days after EPA has published its notice of receipt of the FEIS in
the FR, or 90 days after the EPA notice of receipt of the DEIS,
whichever is later. The ROD documents that the decision has been made
and the basis for that decision.
Sec. 651.23 Record of Decision.
The proponent will prepare the ROD. The ROD will be signed by the
approving official and will:
(a) Clearly state the decision by describing it in sufficient
detail to address the significant issues and ensure necessary long-term
monitoring and execution.
(b) Identify all alternatives considered by the Army in reaching
its decision. Discuss preferences among alternatives based on relevant
factors including environmental, economic, and technical considerations
and agency statutory missions. Identify the environmentally preferred
alternative.
(c) Identify and discuss all such factors, including any essential
considerations of national policy and national defense that were
balanced by the Army in making its decision. Because economic and
technical analyses are balanced with environmental factors, the
selected alternative will not necessarily be the environmentally
preferred alternative.
[[Page 70351]]
(d) Discuss how the considerations of Sec. 651.23(c), above,
entered into the decision.
(e) State whether all practicable means to avoid or minimize
environmental harm from the selected alternative have been adopted, and
if not, why they were not.
(f) Clearly and expressly identify or adopt by reference those
mitigation measures that were incorporated into the decision which
require specific funding (i.e., funding that will be required in
addition to the applicable Army organizations' internal operating
budget and will be dedicated to the specified mitigation measure) and
those for which specific monitoring is appropriate (e.g., results in a
specific deliverable such as a survey or report, requires reporting to
a regulatory agency, etc.).
(g) Adopt mitigation measures to reduce adverse environmental
effects (see subpart F of this part). Mitigation measures may include
actions that require programming and funding, and measures that are
already in effect and do not require additional funding (e.g., standard
operating procedures, best management practices, etc.).
(h) Include a statement that the Antideficiency Act (31 U.S.C.
1341) prevents Federal agencies, including the Army, from incurring
obligations that are not yet funded by Congress, and that while the
Army's intent is to pursue funding for all mitigation measures
identified in the ROD, the Army is limited by future Congressionally-
approved budgets.
Sec. 651.24 Implementation of Decision.
(a) Implementation of the decision may begin immediately after
signature on the ROD. The proponent will prepare and coordinate a NOA
for publication in the FR in accordance with Sec. 651.25.
(b) The proponent is responsible for implementing mitigation
measures and other conditions that have been identified in the EIS and
included in the ROD. The proponent, in coordination with the
Installation Commander as appropriate will:
(1) Include appropriate conditions in grants, permits, or other
approvals.
(2) Ensure that funding is secured for selected mitigation
measures.
(3) Upon request, inform cooperating or commenting agencies on the
progress in carrying out adopted mitigation measures and make the
results of relevant monitoring available.
Sec. 651.25 Federal Register publication of Army actions.
The proponent is responsible for preparation of the FR publication
package for their actions. FR publication packages are required for EIS
NOIs, EIS NOAs, RODs, and notices of withdrawal of an EIS NOI. By
exception, NOA FR publication packages are also prepared for EAs/draft
FONSIs that are nationwide in scope and of national concern. FR
publication packages must be coordinated and contain the documentation
as required in this section.
(a) The FR publication package must include: The FR NOI, NOA, or
ROD as appropriate; either Information for Members of Congressional
Delegations (if the action is affecting one or several installations
and states) or Information for Members of Congress (if the action is
nation-wide, affecting many installations and states to a point that
requires informing all Members of Congress); Questions and Answers;
Press Release; and the proponent's record of coordination.
(b) The FR publication package must be coordinated by the proponent
as follows:
(1) The proponent will coordinate the FR publication package
through their chain of command to DCS, G-9 and OTJAG for review. The
proponent will address all comments and questions from DCS, G-9 and
OTJAG. The DCS, G-9 will forward the FR publication package to ODASA
(ESOH) with all revisions incorporated.
(2) ODASA (ESOH) will coordinate the FR package with OCLL, OCPA,
OGC, and the SA (as appropriate).
(3) Information for Members of Congressional Delegations is
prepared for actions of interest to a specific Delegation(s). By
exception, when the action has nation-wide implications to the point
where it is appropriate to provide information on the action to every
Member of Congress an Information for Members of Congress is prepared
by the proponent.
(4) ODASA (ESOH) provides the approved FR package to the Army
Federal Register Liaison Officer for publication in the FR. The Army
Federal Register Liaison Officer will provide the anticipated date the
FR notice will be published.
(c) ODASA (ESOH) will notify DCS, G-9, the proponent, and OCLL of
the anticipated FR publication date. OCLL will notify the relevant
Members of Congress of the action prior to publication in the FR.
(1) If the action is a NOA for a Draft or Final EIS, the proponent
or their designee is responsible for uploading of the required
documents to EPA's EIS website (https://www.epa.gov/nepa). Uploading
the EIS to EPA's EIS website shall not precede Secretariat approval of
the FR package.
(2) Publication or release of local notices by Army proponents
shall not precede the FR notice, and will be identical to the notice
published in the FR.
(3) It is the proponent's responsibility to allow sufficient time
to coordinate publication of their notice in the FR in order to avoid
conflicts with execution of the proposed action.
Subpart F--Mitigation and Monitoring
Sec. 651.26 Mitigation.
(a) Throughout the NEPA process, the proponent must consider
mitigation measures to avoid, minimize, or compensate for adverse
environmental effects:
(b) Identification of Mitigations. Potential mitigation measures
must be identified for all adverse effects, not just those that are
significant. Some adverse effects are so minute as to be barely
noticeable; for these de minimis effects, it is possible that no
mitigation is required. When mitigation is a component or factor of the
proposed action (e.g., mitigation by design), it should be identified
in the EA or EIS.
(c) Determining Appropriate Mitigation Measures. The identification
and evaluation of appropriate mitigation measures must involve the use
of experts familiar with the predicted environmental impacts, in
addition to collaboration with affected resource agencies.
(d) Practicability of Mitigation Measures. Only those practicable
mitigation measures that can reasonably be accomplished as part of a
proposed action and alternatives will be identified. A number of
factors determine what is practicable, including military mission,
manpower restrictions, financial feasibility, technical feasibility,
institutional barriers, and public acceptance. In certain
circumstances, mitigation of adverse environmental effects may not be
practicable and the decision to proceed with an action may result in an
acceptable loss of environmentally sensitive resources.
(e) Adoption and Implementation of Mitigation. Implementation of
mitigation measures is the responsibility of the proponent. The
proponent will make available to the public, upon request, the status
and results of mitigation measures associated with the proposed action.
(f) Any mitigation measures selected will be clearly outlined in
the FONSI or ROD. All practicable means to avoid or minimize
environmental effects
[[Page 70352]]
resulting from the selected alternative should be adopted, or an
explanation given as to why they were not. Mitigation measures that
were considered in the EA or EIS but rejected in the FONSI or ROD must
be discussed, providing the reason for rejection.
(g) An EA may result in a FONSI based upon the analysis and
selection of mitigation measures that reduce adverse environmental
effects to the point that they are no longer significant. If mitigation
measures are used in such a manner, the FONSI must identify them, and
they become legally binding and must be accomplished as the selected
alternative is implemented.
(h) Mitigation measures will be planned, programmed, and budgeted
by the proponent or, if appropriate, through the appropriate
installation or mission program, in accordance with applicable Army
policy and regulation. Implementation of the selected action should be
conditioned on funding of mitigation, subject to the Antideficiency Act
(31 U.S.C. 1341).
Sec. 651.27 Mitigation Monitoring and Enforcement.
(a) Monitoring and enforcement ensure that mitigations are
effective and are performed as described in NEPA documents. If
mitigation measures are extensive, the Installation Commander will
prepare, resource, and implement a Mitigation Monitoring and
Enforcement Plan (MMEP). If prepared, a MMEP may be filed with the
proponent's file copy of the EA or EIS, and may be summarized and
adopted in the FONSI or ROD.
(b) A MMEP should address the following:
(1) Effectiveness Monitoring. Plans should identify what mitigation
measures must be monitored and how the effectiveness of the mitigation
measures are evaluated. Effectiveness will be determined based on
specific criteria that may include but are not limited to:
(i) Effectiveness metrics developed for mitigation results that are
quantitative, measurable, and replicable.
(ii) A baseline assessment that identifies the state of
environmentally sensitive resources prior to disturbance by the action.
(iii) A control that isolates the effects of the mitigation
measures from effects originating outside the action.
(iv) Ability to implement any necessary corrective actions to
mitigation measures.
(2) Enforcement Monitoring.
(i) Contractor performance. The proponent must ensure that
mitigation measures performed under contract are subject to timely
inspection and all contract provisions are met and enforced.
(ii) NEPA Lead agency performance. When there is a Lead and a
Cooperating agency involved in a proposed action (see 32 CFR 651.7(h)
and (i)), the Lead agency must ensure that needed tasks are performed.
Actions enabling enforcement include providing appropriate funding in
the project budget, and arranging for necessary manpower allocation.
(iii) NEPA Cooperating agency performance. When a cooperating
agency performs a mitigation required by NEPA, the lead agency as
proponent must ensure that the cooperating agency fully understands its
role in funding and executing the mitigation. The proponent's
mitigation monitoring and enforcement plan should include monitoring
cooperating agency mitigation actions.
(3) Potential change in environmental conditions. The MMEP should
identify the possibility of a change in environmental conditions or
project activities identified in the EA or EIS that may require
adjustment in mitigation measures. Adjustments to mitigation measures
may be needed when the original conclusions of the extent of
environmental effects are found to be inaccurate and original
mitigation measures are too limited or too extensive, or when
previously undetected environmentally sensitive resources are found to
be present during implementation of the action.
(4) Observation Frequency. Identify requirements for the frequency
of observation especially where the effectiveness of a mitigation
measure is uncertain, or environmental controversy remains associated
with the selected action or mitigation measures.
Subpart G--Environmental Effects of Major Army Actions Abroad
Sec. 651.28 Overview.
This section provides an overview of requirements for addressing
the environmental effects of Army actions abroad.
(a) NEPA applies to Army actions within the United States (as
defined in Sec. 651.1(c)). NEPA does not apply to Army actions abroad
(outside of the United States). E.O. 12114, Environmental Effects
Abroad of Major Federal Actions, addresses requirements for
environmental effects of Army actions abroad.
(b) E.O. 12114 and 32 CFR part 187, Environmental Effects Abroad of
Major DoD Actions, provide responsibilities relating to analysis of the
environmental effects of Army actions abroad and in the global commons.
Responsible Army components will document the review of potential
environmental effects of their actions abroad and in the global
commons. Environmental review will be consistent with diplomatic
factors (including applicable SOFAs), stationing agreements and final
governing standards, national security considerations, site-specific
ARs, and ability to access information.
(c) The analysis and documentation of potential environmental
effects of Army actions abroad and in the global commons should, to the
maximum extent possible, be incorporated into existing decision-making
processes, planning for military exercises, training plans, and
military operations. The requirement for documentation is subject to
exemptions listed in paragraph 2-5 of E.O. 12114.
Sec. 651.29 Use of Categorical Exclusions.
CXs in Sec. 651.12 of this part are not applicable to
environmental considerations in locations abroad where NEPA is not
applicable. They may be used, however, to assist in gauging the level
of analysis that may be needed under this Subpart.
Appendix A to Part 651--References
Military publications and forms are accessible from a variety of
sources through the use of electronic media or paper products. In
most cases, electronic publications and forms that are associated
with military organizations can be accessed at various address or
websites on the internet. Since electronic addresses can frequently
change, or similar web links can also be modified at several
locations on the internet, it's advisable to access those sites
using a search engine that is most accommodative, yet beneficial to
the user. Additionally, in an effort to facilitate the public right
to information, certain publications can also be purchased through
the National Technical Information Service (NTIS). Persons
interested in obtaining certain types of publications can write to
the National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161.
Section I--Required Publications
AR 360-1
The Army Public Affairs Program.
Section II--Related Publications
A related publication is merely a source of additional
information. The user does not have to read it to understand this
part.
Antideficiency Act.
Public Law 97-258, 96 Stat. 923; as amended (31 U.S.C. 1341)
AR 5-10
Stationing.
AR 70-1
Army Acquisition Policy.
AR 200-1
[[Page 70353]]
Environmental Protection and Enhancement
AR 380-5
Department of the Army Information Security Program
Defense Acquisition Guidebook
https://www.dau.mil/tools/dag
DA PAM 70-3
Army Acquisition Procedures
Department of Defense Directive 5000.01
The Defense Acquisition System
Department of Defense Instruction 5000.02
Operation of the Defense Acquisition System
Executive Order 12114
Environmental Effects Abroad of Major Federal Actions, 3 CFR,
1979 comp., p. 356
Executive Order 13007
Indian Sacred Sites, 3 CFR, 1996 Comp., p. 196
Clean Air Act
Public Law 88-206; as amended (42 U.S.C. 7401, et seq.)
Clean Water Act of 1977
Public Law 95-217, 91 Stat. 1566 and Public Law 96-148, Sec.
1(a)-(c), 93 Stat. 1088 (33 U.S.C. 1251 et seq.)
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980
As amended (CERCLA, Superfund) (42 U.S.C. 9601 et seq.)
Endangered Species Act of 1973
Public Law 93-205, 87 Stat. 884 (16 U.S.C. 1531 et seq.)
Fish and Wildlife Coordination Act
Public Law 85-624, Sec. 2, 72 Stat. 563 and Public Law 89-72,
Sec. 6(b), 79 Stat. 216. (16 U.S.C. 661 et seq.)
Migratory Bird Treaty Act of 1918
(16 U.S.C. 703-712; Ch. 128; July 3, 1918; 40 Stat. 755)
National Environmental Policy Act of 1969
Public Law 91-190, 83 Stat. 852 (42 U.S.C. 4321 et seq.)
National Historic Preservation Act
Public Law 89-665, 80 Stat. 915 (54 U.S.C. 300101 et seq.)
Native American Graves Protection and Repatriation Act
Public Law 101-601, 104 Stat. 3048 (25 U.S.C. 3001 et seq.)
Pollution Prevention Act of 1990
Public Law 101-508, Title VI, Subtitle G, 104 Stat. 13880-321
(42 U.S.C. 13101 et seq.)
Resource Conservation and Recovery Act of 1976
Public Law 94-580, 90 Stat. 2795 (42 U.S.C. 6901 et seq.)
Rivers and Harbors Appropriation Act of 1899
33 U.S.C. 407
Sikes Act
Public Law 86-797, 74 Stat. 1052 (16 U.S.C. 670a et seq.)
Note. The following CFRs may be found in your legal office or
law library. Copies may be purchased from the Superintendent of
Documents, Government Printing Office, Washington, DC 20401.
36 CFR part 800
Advisory Council on Historic Preservation
40 CFR parts 1500 through 1508
Council on Environmental Quality
Section III--Prescribed Forms
This section contains no entries.
Section IV--Referenced Forms
This section contains no entries.
Appendix B to Part 651--Glossary
Abbreviations
AAE Army Acquisition Executive
ACAT Acquisition Category
ACOM Army Command
AGR Active Guard and Reserve Duty
APHC U.S. Army Public Health Center
AQCR Air Quality Control Region
AR Army Regulation
ARNG Army National Guard
ARSTAF Army Staff
ASA (AL&T) Assistant Secretary of the Army (Acquisition, Logistics,
and Technology)
ASA (FMC) Assistant Secretary of the Army (Financial Management and
Comptroller)
ASA (IE&E) Assistant Secretary of the Army (Installations, Energy
and Environment)
BGEPA Bald and Golden Eagle Protection Act
CARD Cost Analysis Requirements Description
CBTDEV Combat Developer
CEQ Council on Environmental Quality
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CONUS Continental United States
CX Categorical Exclusion
DA Department of the Army
DASA (ESOH) Deputy Assistant Secretary of the Army (Environment,
Safety, and Occupational Health)
DCS Deputy Chief of Staff
DEIS Draft Environmental Impact Statement
DoD Department of Defense
DOPAA Description of Proposed Action and Alternatives
DOTMLPF-P Doctrine, organization, training, materiel, leadership and
education, personnel, facilities, and policy
DRU Direct Reporting Unit
DTIC Defense Technical Information Center
EA Environmental Assessment
EIS Environmental Impact Statement
EJ Environmental Justice
E.O. Executive Order
EOD Explosive Ordnance Demolition
EPA Environmental Protection Agency
ESA Endangered Species Act
ESOH Environment, Safety, and Occupational Health
FAA Federal Aviation Administration
FEIS Final Environmental Impact Statement
FONSI Finding of No Significant Impact
FR Federal Register
GC General Counsel
GOCO Government-Owned, Contractor-Operated
GSA General Services Administration
HQDA Headquarters, Department of the Army
ICRMP Integrated Cultural Resources Management Plan
ICT Integrated Concept Team
INRMP Integrated Natural Resources Management Plan
IPMP Integrated Pest Management Plan
ISCP Installation Spill Contingency Plan
ITAM Integrated Training Area Management
MATDEV Materiel Developer
MBTA Migratory Bird Treaty Act
MILCON Military Construction
MMEP Mitigation Monitoring and Enforcement Plan
MOA Memorandum of Agreement
MOU Memorandum of Understanding
MSC Mission Support Commands
NAGPRA Native American Graves Protection and Repatriation Act
NEPA National Environmental Policy Act
NGB National Guard Bureau
NHPA National Historic Preservation Act
NOA Notice of Availability
NOI Notice of Intent
NRC Nuclear Regulatory Commission
NTIS National Technical Information Service
OASD (PA) Office of the Assistant Secretary of Defense (Public
Affairs)
OCLL Office of the Chief of Legislative Liaison
OCPA Office of the Chief of Public Affairs
OFS Officer Foundation Standards
OGC Office of General Counsel
OPSEC Operations Security
OSD Office of the Secretary of Defense
PAO Public Affairs Officer
PCB Polychlorinated Biphenyls
PESHE Programmatic Environment Safety and Occupational Health
Evaluation
PEO Program Executive Officer
PM Program/Project/Product Managers
POC Point of Contact
POL Petroleum, Oils, and Lubricants
PPBES Program Planning and Budget Execution System
RCRA Resource Conservation and Recovery Act
RDT&E Research, Development, Test, and Evaluation
REC Record of Environmental Consideration
ROD Record of Decision
SA Secretary of the Army
SARA Superfund Amendments and Reauthorization Act
SDZ Surface Danger Zone
SEP Systems Engineering Plan
SOFA Status of Forces Agreement
SPCCP Spill Prevention, Control, and Countermeasure Plan
TAG The Adjutant General
TDP Technical Data Package
TJAG The Judge Advocate General
TRADOC U.S. Army Training and Doctrine Command
UAV Unmanned Aerial Vehicle
UGV Unmanned Ground Vehicle
USACE U.S. Army Corps of Engineers
USAEC U.S. Army Environmental Command
U.S.C. United States Code.
Brenda S. Bowen,
Army Federal Register Liaison Officer.
[FR Doc. 2019-26336 Filed 12-19-19; 8:45 am]
BILLING CODE 5001-03-P
