[Federal Register Volume 79, Number 228 (Wednesday, November 26, 2014)]
[Notices]
[Pages 70538-70540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27966]
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DEPARTMENT OF HOMELAND SECURITY
[Docket Number DHS-2013-0052]
Environmental Planning and Historic Preservation Program
AGENCY: Department of Homeland Security.
ACTION: Notice of Final National Environmental Policy Act Implementing
Procedures.
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SUMMARY: The purpose of this notice is to inform the public that the
Department of Homeland Security (DHS or the Department) is issuing the
final update to its policy and procedures for implementing the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), as
amended, and the Council on Environmental Quality (CEQ) regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508). The Department's NEPA procedures are contained in Directive 023-
01, Rev. 01 and Instruction Manual 023-01-001-01, Rev. 01,
Implementation of the National Environmental Policy Act (herein after
referred to as Directive and Instruction). This notice also responds to
the comments received on the Department's draft updated procedures
published on June 5, 2014 (79 FR 32563).
DATES: The Directive and Instruction will be effective on March 26,
2015.
FOR FURTHER INFORMATION CONTACT: A. Marie Ecton, Senior Environmental
Specialist, Department of Homeland Security, Telephone (202) 360-5661,
or Email [email protected].
SUPPLEMENTARY INFORMATION: Once effective, the Directive and
Instruction will apply to all of DHS, which is currently comprised of
over 20 support and operational components, and help ensure the
integration of environmental stewardship into DHS decision making as
required by NEPA. The Directive and Instruction will serve as the DHS
implementing procedures for NEPA and the CEQ regulations (as required
by 40 CFR 1505.1 and 1507.3) and therefore must be read in conjunction
with the CEQ regulations.
The Directive and Instruction were substantially revised to address
a number of circumstances and requirements that have arisen since April
19, 2006, the effective date of the original DHS NEPA procedures
(Federal Register, Vol. 71, No. 64, April 4, 2006). For example, when
originally published in 2006 the Directive and Instruction did not
apply to the following three Components of DHS: Federal Emergency
Management Agency (FEMA), Customs and Border Protection (CBP), and
United States Coast Guard (USCG); these three Components each
maintained their own procedures for implementing NEPA when the
Department was established in 2002. This revision to the Directive and
Instruction incorporates FEMA, CBP, and USCG into the Department's NEPA
procedures and addresses the full scope of DHS activities to which NEPA
applies. When the updated procedures become effective, they will apply
to all Components of DHS, including FEMA, CBP, and USCG. In addition,
every Component will have the option of developing Supplemental
Instructions to establish how that particular Component will meet the
requirements of the final version of the DHS Directive and Instruction.
In a separate yet related effort, FEMA will pursue rescission of its
regulations at 44 CFR 10 and replace them with Supplemental
Instructions that conform to requirements of the DHS Directive and
Instruction.
The requirements put forth in the revised Directive and Instruction
emphasize that the NEPA process must be appropriately integrated into
the performance of DHS missions and activities and decision making. The
revised Directive establishes the overall policy that DHS will comply
with NEPA, and the revised Instruction establishes the procedures for
ensuring this compliance is implemented in an effective and efficient
manner. The Instruction covers the following: Overview of NEPA
requirements, including requirements for the preparation and content of
NEPA documents; management of NEPA implementation in DHS; criteria for
Components to obtain a delegation of authority to approve their
respective NEPA reviews; public involvement; dispute resolution;
information protected from public disclosure; procedures for
emergencies; review of applications from persons or organizations
outside of DHS (e.g., grant applications); and an identification of the
types of DHS activities normally reviewed in a CATEX, Environmental
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Assessment, or Environmental Impact Statement.
The CATEXs published in 2006 are being retained and are included in
the Instruction (Appendix A, Table 1). In addition, the Instruction
includes the following new CATEXs: One CATEX for an administrative
activity; five CATEXs for real property management activities; 13
CATEXs for non-grant activities unique to FEMA's mission and
authorities; and 19 CATEXs for federal assistance (e.g., grant)
activities. For synopses of the administrative record support for the
Department's list of 2006 and new CATEXs, see the docket and the DHS
NEPA Web page at http://www.dhs.gov/nepa.
DHS invested over three years in developing the proposed revision
to its NEPA procedures. The draft revised Directive and Instruction
were provided to CEQ in the fall of 2013 for review and discussion
prior to the June 5, 2014 publication for public comment. DHS provided
its proposed final revised Directive and Instruction to CEQ in early
September 2014; CEQ responded with a letter dated November 10, 2014
prior to this publication of the final Directive and Instruction as
required under 40 CFR 1507.3(a), indicating that the Department's
revised procedures conform to NEPA and the CEQ regulations.
Comments on Categorical Exclusions and DHS Response:
DHS received a comment from the International Association of Fire
Chiefs (IACF) regarding the proposed new CATEX for federally-assisted
wildfire mitigation activities. To improve readability (but with no
change to the scope), DHS revised the CATEX between the draft and final
version to read as follows:
*N11 Federal Assistance for Wildfire Hazard Mitigation Actions.
Federal assistance for wildfire hazard mitigation actions involving the
creation of defensible space or hazardous fuel reduction for up to 100
feet of at-risk structures which includes the selective removal of
vegetation less than 12 inches in diameter through thinning, pruning,
limbing, sawing, or brush cutting; removal of downed, dead, or dry
vegetation material as part of the overall action.
The actions must be limited to less than 100 acres of vegetation
removal either individually or when combined with other reasonably
foreseeable private or public actions and follow appropriate best
management practices.
Although IACF was supportive of the draft proposed CATEX, they
recommended removal of the 100-foot limit on the creation of defensible
space. DHS supports the mission and respects the perspective of IACF;
however, for the time being DHS has decided to retain the proposed
wording of the CATEX. DHS relied on only a small number of FEMA
Environmental Assessments (EAs) to support development of the new
CATEX, and none of those EAs included a buffer greater than 100 feet.
Without sufficient information from past DHS-funded wildfire mitigation
projects that demonstrates that a larger buffer results in no potential
for environmental impacts, DHS currently believes that a higher level
of NEPA review and impact evaluation is necessary for actions involving
more than 100 acres of vegetation removal.
If, as a result of additional DHS reviews of wildfire mitigation
projects, DHS is able to document and determine that the buffer can
reasonably be extended because there are few to no environmental
impacts associated with larger scale clearing for wildfire mitigation
purposes, then DHS will consider revising the CATEX. In addition, DHS
will work with subject matter experts, including IACF, to obtain other
data that may support future revisions to the CATEX.
Lastly, it is important to note that if proposed vegetation
clearing for wildfire mitigation purposes is greater than 100 feet from
a structure, DHS can still provide grant funding for the project once
the appropriate level of environmental review has been conducted.
DHS received two comments from the State of Arizona Game and Fish
Department (AZGFD) regarding the following proposed CATEX for
federally-assisted new construction activities:
*N8 Federal Assistance for New Construction Activities of Less Than
One Acre in Undisturbed or Undeveloped Areas. Federal assistance for
new construction and associated site preparation activities in
undisturbed or undeveloped areas when the activities comprise less than
one acre and follow best management practices to control noise, water,
and air pollution. This category does not apply to new construction in
undisturbed or undeveloped floodplains, wetlands, or seaward of the
limit of moderate wave action (or V zone when the limit of moderate
wave action has not been identified). This CATEX covers the range of
activities typically necessary for new construction, including field
work (e.g.orings, site inspection) and temporary staging and use of
construction equipment and vehicles.
AZGFD's first comment was that the draft proposed CATEX as written
``has the potential to impact wildlife resources in undisturbed/
undeveloped areas without appropriate direct or cumulative impact
analysis of construction activities. Construction activities within an
acre of undisturbed or undeveloped areas have the potential to result
in direct take of wildlife, habitat fragmentation, and reduced
landscape wildlife permeability.'' AZGFD's second comment was a request
that DHS include ``clarifying language that ensures cumulative impacts
for state trust wildlife resources are identified for all related
actions, and that reasonable mitigation measures are implemented'' and
include ``Best Management Practices (BMPs) . . . that reduce impacts to
wildlife including timing restrictions, trenching guidelines, fencing
guidelines, etc.''
In response to AZGFD's comments on new CATEX N8, DHS added the
following sentence to Section V.B(2) of the Instruction, which
discusses how to appropriately apply CATEXs to proposed actions:
``Application of a CATEX to a proposed action presumes review and
compliance under other relevant environmental planning and historic
preservation laws, regulations, and Executive Orders (e.g., National
Historic Preservation Act, Endangered Species Act) has occurred, and
that a higher level of NEPA analysis is not warranted as a result of
any identified impacts to resources protected under those other
requirements.'' In addition, DHS believes it has enough data from past
actions to justify that no significant cumulative impacts result from
the clearing of plots less than one acre each. If DHS were to provide
federal assistance for the clearing of multiple one acre plots in close
proximity to each other, this situation would constitute an
extraordinary circumstance that would prohibit use of the CATEX and
would require a higher level of NEPA analysis. The list of DHS
extraordinary circumstances is provided in Section V.B(2)(c) of the
Instruction; these include a consideration of impacts to protected
species and habitat and environmentally sensitive areas, and a
consideration of whether the proposed action is related to other
actions with individually insignificant, but cumulatively significant
impacts. As to cumulative impacts on habitat and species, these will
get covered in the ESA consultation process; notwithstanding the new
CATEX N8, DHS will consult with the U.S. Fish and Wildlife Service and
relevant state agencies, such as AZGFD, for proposed
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actions potentially affecting protected species and habitat.
AZGFD also commented that the definition of Cooperating Agency
included in Section II of the draft Instruction was not fully
consistent with the CEQ definition in 40 CFR 1508.5. DHS agrees with
AZGFD, and has revised the definition accordingly in the final
Instruction.
DHS received questions regarding the need for CATEXs for
Congressionally-mandated activities (existing USCG CATEXs L18 and L53,
and new DHS-wide CATEX C6), to which NEPA does not apply. When Congress
mandates an activity, such as the transfer of DHS controlled real
property to a non-Federal entity, DHS has no discretion whether or not
to perform the activity; however, DHS may have discretion on some
aspects of how the activity is executed. Therefore, DHS NEPA
practitioners expressed the need for such CATEXs where DHS has some
level of discretion and the activities have been determined not to have
the potential for significant environmental impacts.
Lastly, DHS received three comments regarding the accessibility and
readability of the draft revised Directive and Instruction and
supporting documents; namely that the Federal Register notice was
inadequate as a means of communicating with stakeholders and the
public, that hyperlinks to the documents should have been clearly
identified and easily accessible, and that the documents were difficult
to comprehend. The Federal Register and www.regulations.gov are widely
recognized as appropriate sources for the public to learn about and
comment on Federal government initiatives. DHS wrote the documents
according to style guides and writing standards applicable to the
federal government as well as DHS-specific requirements of its formal
Directives system. All relevant documents were and remain available to
the public on the Department's NEPA Web page (www.dhs.gov/nepa) and on
the www.regulations.gov Web site under Docket Number DHS-2013-0052. The
June 5, 2014 Federal Register notice provided clear instructions to
readers to visit these two Web sites to view the draft revised
Directive and Instruction and supporting documents.
A copy of this Federal Register publication and the final Directive
and Instruction and supporting documents are available on the internet
at www.regulations.gov (Docket Number DHS-2013-0052) and http://www.dhs.gov/nepa.
Teresa R. Pohlman,
Director of Sustainability and Environmental Programs.
[FR Doc. 2014-27966 Filed 11-25-14; 8:45 am]
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