[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Rules and Regulations]
[Pages 45421-45433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20614]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 /
Rules and Regulations
[[Page 45421]]
NATIONAL CAPITAL PLANNING COMMISSION
1 CFR Part 601
National Environmental Policy Act Regulations
AGENCY: National Capital Planning Commission.
ACTION: Final rule.
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SUMMARY: The National Capital Planning Commission (NCPC or Commission)
rescinds its current Environmental and Historic Preservation Policies
and Procedures (2004 Policies) and hereby adopts new rules governing
NCPC's implementation of the National Environmental Policy Act (NEPA).
DATES: This rule is effective October 30, 2017.
FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, (202) 482-7223 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Summary of Changes
A. Background
NCPC's 2004 Policies were adopted in 2004 (69 FR 41299, July 8,
2004) and generally remain appropriate. However certain portions of the
2004 Policies require revision to simplify, streamline, and improve the
effectiveness of NCPC's process for complying with NEPA. Accordingly,
this document adopts a complete new rule.
B. Elimination of Section 106 Procedures
One of the most significant changes reflected in the new rule is
the elimination of procedures for complying with Section 106 of the
National Historic Preservation Act (NHPA). In 2004, when it adopted the
2004 Policies, NCPC opted to issue combined NEPA and NHPA guidance to
ensure coordinated implementation of both procedures. However,
regulations promulgated by the Advisory Council on Historic
Preservation (ACHP) do not require agencies to adopt agency specific
processes and procedures (see 36 CFR chapter VIII). Instead ACHP
regulations establish the processes and procedures all Federal Agencies
must follow. This resulted in the inclusion of duplicative information
in NCPC's 2004 Policies. While this information proved helpful, it
diverted attention away from NCPC's agency-specific NEPA procedures
mandated by the Council on Environmental Quality (CEQ). Accordingly,
this rule does not include detailed references to the Section 106
consultation process. It does include a reference to coordination
between NEPA and NHPA and consideration of historic resources in the
NEPA process.
C. Federal and Non-Federal Agencies
To clarify roles and responsibilities, these Regulations
distinguish between Federal Agency applicants and Non-Federal Agency
applicants. Federal Agency applicants include cabinet level departments
and executive agencies such as the U.S. General Services Administration
(GSA). Non-Federal Agency applicants include, without limitation, the
Smithsonian Institution, the John F. Kennedy Center for the Performing
Arts, the National Gallery of Art, the U.S. Institute of Peace, the
Government of the District of Columbia, the Maryland National Capital
Park and Planning Commission (MNCPPC), and private parties and entities
implementing projects on Federal land. NCPC's jurisdiction extends to
Non-Federal Agency applicants when they undertake projects on
federally-owned land. Under this rule, NCPC serves as the Lead Agency
for Non-Federal Agency applications. This is necessitated by the fact
the Non-Federal Agencies are not subject to NEPA. However, if the
Commission takes an approval action on a Non-Federal Agency
application, the requirements of NEPA apply to the Commission's
decision-making process. This means NCPC must undertake the requisite
steps of the NEPA process for a Non-Federal Agency application to meet
its legal obligation.
D. Timing and Sequencing of Submission of NEPA Documents
These Regulations also alter the timing and sequencing of an
applicant's submission of NEPA documentation for applications governed
by the National Capital Planning Act and the Commemorative Works Act.
Under the 2004 Policies, an applicant was required to complete the NEPA
process at the time of preliminary review. Under this rule, an
applicant must complete its NEPA process at the time of final review.
This revised approach allows the Commission an opportunity to provide
input on a project when it is still in the developmental phase. It also
provides a NEPA sequencing consistent with Federal Agency project
development schedules. This eliminates the pressure on Federal Agency
applicants to expedite its NEPA process to meet NCPC's current
sequencing requirements.
E. Categorical Exclusions
NCPC's rule also includes changes to the list of projects eligible
for application of a Categorical Exclusion (CATEX). The Regulations
include several new CATEXs. NCPC eliminated several existing CATEXs
because they were based on old, antiquated authorities which have
little to no relationship to NCPC's present day review roles. The rule
also increase the number of extraordinary circumstances which negate
the application of a CATEX.
II. Summary of and Response to Comments
A. General
NCPC published a Proposed Rule (82 FR 42570, May 30, 2017)
addressing revisions to its 2004 Policies, establishing a 45-day public
comment period. The public comment period closed on July 14, 2017.
NCPC received a little under 100 comments on its proposed NEPA rule
Regulations. Comments were submitted by the General Services
Administration, the U.S. Department of the Interior and it's National
Park Service, and the National Aeronautics and Space Administration;
the Smithsonian Institution; the Washington Area Metropolitan Transit
Authority; the National Trust for Historic Preservation; The Committee
of 100 on the Federal City; approximately 21 members of the general
public; and two private consulting firms. A summary chart of all the
comments received and NCPC's response thereto can be found on NCPC's
Web site at www.ncpc.gov/subnepa.
[[Page 45422]]
The major comments can be grouped into six categories: (1) The
elimination of detailed reference to compliance with Section 106 of the
NHPA; (2) the treatment of Non-Federal Agencies in the Regulations; (3)
the timing and sequencing of submitting NEPA Documents/Co-Signing a
Finding of No Significant Impact (FONSI) or a Record of Decision (ROD);
(4) NCPC's reliance on the CATEX of other government agencies; and (5)
the minimal focus on public participation in the NEPA process/lack of
public knowledge of process for administering CATEXs.
B. Revised Name for the Regulations
NCPC decided to rename its NEPA requirements the National
Environmental Policy Act Regulations (Regulations). This title is more
descriptive of the true nature of the Regulations versus the title of
Environmental Policies and Procedures conferred on the 2004 Policies.
C. Elimination of NHPA Section 106 Requirements
Several comments addressed the elimination of NHPA Section 106
procedures from the Regulations. The National Trust for Historic
Preservation generally agreed with the elimination, but it suggested
designating the NEPA Lead and Cooperating Agencies as the Lead and
Consulting Parties for the Section 106 process. NCPC disagrees with
this suggestion. NCPC maintains it is inappropriate to designate roles
for the Section 106 process in its NEPA Regulations. To compensate for
the elimination, a member of the public suggested reference to ACHP
guidance on the ACHP for integrating NEPA and the Section 106
processes. While NCPC found merit to this comment and initially
inserted an endnote to the ACHP Web site and the CEQ Web site for
general NEPA guidance, CEQ believed the references unnecessary.
Finally, the Committee of 100 on the Federal City maintained the
elimination of references to the Section 106 process sent a negative
message about the connection between the two processes. NCPC notes this
was not its intention as evidenced by the clearly articulated policy in
Sec. 601.2(d) to integrate the requirements of NEPA with, among
others, the requirements of the NHPA.
D. Role of Non-Federal Agencies
The role of Non-Federal Agencies in the NEPA process generated a
number of comments. The Smithsonian Institution (designated a Non-
Federal Agency in the Regulations) recommended the re-designation of
Federal and Non-Federal Agencies as Executive and Non-Executive
Agencies on the theory that this might be less confusing. NCPC declined
to make this change because of the repeated use of the term ``federal''
in the National Capital Planning Act (40 U.S.C. 8701 et seq.). However,
for clarification purposes, NCPC revised the definition of Non-Federal
Agencies to indicate this designation applies only for purposes of
NEPA.
One member of the public challenged the legality of designating
Non-Federal Agencies as ``Cooperating Agencies'' given that the CEQ
regulatory definition only designates ``federal agencies'' as capable
of serving in this capacity. NCPC notes this statement is only
partially correct. The definition of Cooperating Agency in 40 CFR
1508.5 also extends to state or local agencies rendering such agencies
eligible to serve as Cooperating Agencies. This makes Cooperating
Agency status appropriate for the Government of the District of
Columbia and the Maryland National Capital Park and Planning
Commission. As to the others listed in the definition--Smithsonian
Institution, the John F. Kennedy Center for the Performing Arts, the
National Gallery of Art, the U.S. Institute of Peace, and private
parties undertaking development on Federal land--NCPC agrees an
alternative approach is necessary.
NCPC also agrees with the same individual's multiple comments that
NCPC does not undertake NEPA ``on behalf'' of Non-Federal Agencies.
NCPC recognizes that the NEPA obligation for a Non-Federal Agency
application belongs to NCPC. NCPC believes a minor wording change to
``undertakes NEPA for a Non-Federal Agency application'' solves this
concern.
Turning to an alternative approach for NEPA compliance for Non-
Federal Agency applications, NCPC notes it is not alone in confronting
the issue of Non-Federal Agency applications to which NEPA applies
because of the Federal Agency's approval/permitting authority. NCPC
looked at the NEPA regulations for similarly situated Federal Agencies
to ascertain how they handle the issue. One Federal Agency lists in its
regulations the information that the Non-Federal Agency (permittee and
owner of the project) must submit to facilitate staff's preparation of
the requisite NEPA document. Because this approach increased the
complexity of the agency's regulations, and NCPC's goal is to
streamline its regulations consistent with the Administration's
articulated regulatory reduction goals, NCPC adopted a modified version
of this approach.
NCPC will enter into a Memorandum of Agreement (MOA) (renamed from
a Memorandum of Understanding or MOU in the proposed rule) with Non-
Federal Agencies. The MOA will specify, among others, the information
the Non-Federal Agency must submit to enable preparation of the
requisite environmental document by NCPC staff and the timing of the
information's submission. Contrary to the comments on one individual,
NCPC disagrees the MOA approach is legally insufficient. This comment
implies NCPC is relinquishing its NEPA responsibilities by entering
into a MOA. This is not the case. NCPC considers the MOA an internal
operating procedure within its authority to implement. It is also an
efficient and effective way to fulfill its NEPA obligation and avoid
some of the pitfalls associated with the prior approach of Cooperating
Agency status. The problems avoided include budgetary issues if the
Non-Federal Agency provides money to NCPC to retain a contractor, Non-
Federal Agency participation in NCPC's retention of the Non-Federal
Agency funded contractor, and the potential for two A&E contractors
working on different aspects of the same project. To facilitate public
awareness, NCPC will post the completed MOA on the NCPC's Web site.
NCPC notes that in a follow-up conversation with the commenter to
explore the rationale for opposing an MOA, the commenter agreed the MOA
approach as outlined above is legally sufficient. NCPC conducted the
follow-up conversation after the comment period closed, and no new
comments were discussed during the conversation.
E. Timing and Sequencing of Submitting NEPA Documents/Co-Signing FONSIs
and RODs
All the government agencies supported NCPC's process change of
moving NEPA completion to coincide with the Commission's final
approval. There was one concern expressed about the sequencing of NEPA
and the Commemorative Works Act's review process, but NCPC believes the
comment was the result of a misunderstanding of the process.
Multiple Federal Agencies also advised against incorporation of a
provision allowing NCPC to co-sign another agency's FONSI or ROD. NCPC
notes that the Regulations render this practice discretionary. However,
if both agencies agree on the contents of a FONSI or ROD, it makes no
sense for NCPC to prepare a duplicated document for NCPC to sign.
Obviously, if the two agencies have different reasons for
[[Page 45423]]
reaching a FONSI or a ROD, co-signature is not an option, and each
agency will have to prepare its own document. Co-signature is also not
an option if there is disagreement over the ability to reach a FONSI or
ROD. This disagreement points to problems with the Environmental
Document that must be resolved before the project can be presented to
the Commission. Finally, NCPC reminds Federal Agencies that co-signing
a FONSI or ROD is entirely consistent with the Administration's efforts
to streamline regulatory processes especially NEPA.
F. Use of Another Agency's CATEX
The inclusion of five Categorical Exclusions that allowed NCPC to
use the exclusion of another agency when it had no corresponding CATEX
generated a number of comments pro and con. Federal Agencies supported
the concept because it removed the possible need for them to prepare an
EA if they used a Categorical Exclusions for their project but NCPC had
no exclusion it could apply. The National Trust for Historic
preservation and a member of the general public objected to the
approach noting it was inconsistent with CEQ's long standing policy to
disallow such an approach.
As required, NCPC submitted an administrative record to CEQ for all
of its proposed CATEX, most of which are carry-overs from several
iterations of prior regulations. The administrative record noted that
the five CATEXs predicated upon use of another agency's exclusion had
not been enlarged in scope and the CATEX continued to be appropriately
limited by extraordinary circumstances, the number of which has been
significantly increased in the Regulations.
NCPC's Administrative Record for the five CATEXs at issue was
initially accepted, but upon further reflection CEQ has decided to
adhere to its long standing policy to disallow such an approach.
Consequently, NCPC has removed all five of the CATEXs at issue. Since
four of the five CATEX at issue have been put to little use for a
prolonged period of time, NCPC does not believe its implementation of
NEPA will be unduly burdened by this removal. The addition of new CATEX
may also fill the gap.
G. Public Participation/Public Knowledge of Process for Administering
CATEX
The Committee of 100 on the Federal City commented on the silence
of the proposed regulation on the goals, criteria and process for
meaningful public participation. They encouraged the incorporation of
meaningful public participation policy and goals to rectify this
deficiency.
NCPC is fully committed to open government and transparency and
believes its past actions amply substantiate this commitment not only
in the NEPA and Section 106 processes but to all of its significant
planning activities. Accordingly, the Regulations clearly articulate a
policy of using the NEPA process to ``. . . foster meaningful public
involvement in NCPC's decisions.'' Moreover, throughout the
Regulations, there are repeated opportunities for public participation
to include in the EIS scoping process with an option for NCPC to
conduct a public scoping process for Environmental Assessments as well;
in the review of draft Environmental Assessments (EAs) (at NCPC's
option) and Environmental Impact Statements (EISs); and in the review
of FONSIs and RODs. Moreover, at the suggestion of another commenter,
documents required to be published in the Federal Register (Notice of
Intent to Prepare an EIS and Notice of Availability of an EIS) will
also be published on the NCPC Web site where parties interested in NCPC
activities are more likely to go to stay abreast of current NCPC
events.
The Committee of 100 on the Federal City also expressed concern
about the Regulation's silence on the administrative process for the
application of a CATEX. NCPC notes that among the Commission's official
delegations is one conferring administrative responsibility for NEPA on
the Executive Director. In the future, owing to the recent redesign of
NCPC's Web site, the delegations will be listed on the Web site.
However, NCPC notes this responsibility, how and when it is made, and
how the public is notified of the decision is set forth in Sec. Sec.
601.11(c) and 601.12(b) of the Regulations.
H. CEQ Comments
As required by CEQ Regulations, NCPC submitted a draft of this
final rule to CEQ for its review and approval following revisions to
the Regulations to reflect comments received during the public comment
period. CEQ responded with a number of recommendations. Most of the
recommendations were minor in nature and involved language
clarifications, addition of cross-references to relevant sections of
CEQ's regulations, and inclusion of additional language.
The one recommendation falling outside the minor category related
to the timing of the signing FONSIs and RODs by Federal Agency
applicants and NCPC for Non-Federal Agency applications. NCPC has in
the past accepted signed FONSIs and RODs at the time an application for
final approval is submitted to the Commission. This practice reflects
the close coordination between NCPC and its applicants and the
likelihood that the Commission, with rare exceptions, will approve the
final application. CEQ (and one commenter) pointed out that
notwithstanding the high probability the signed FONSI or ROD would
reflect the Commission's decision, it was technically incorrect. The
signature of a FONSI or ROD can only occur after the Commission takes a
final action and cannot precede a future, anticipated decision of
approval.
In response to CEQ's comment, the rule requires NCPC to sign its
decision documents following Commission final approval of an
application. As to Federal Agencies, the rule is silent as to when the
Federal Agency may sign its FONSI or ROD. However, there is now an
express provision that places the burden on Federal Agency applicants
to review their Environmental Documents and their FONSI or ROD to
determine if revisions are necessary if at the time of final approval
the Commission disapproves an application and requires changes to the
project.
Following incorporation of all of CEQ's recommended changes into
the regulations, NCPC received final CEQ sign off on September 21,
2017.
III. Compliance With Laws and Executive Orders
Executive Orders 12866 and 13563
By Memorandum dated October 12, 1993 from Sally Katzen,
Administrator, Office of Information and Regulatory Affairs (OIRA) to
Heads of Executive Departments and Agencies, and Independent Agencies,
OMB rendered the NCPC exempt from the requirements of Executive Order
12866 (See, Appendix A of cited Memorandum). Nonetheless, NCPC
endeavors to adhere to the provisions of the Executive Order.
Executive Order 13771
NCPC is exempt from this Executive Order because it is exempt from
E.O. 12866, NCPC confirmed this fact with OIRA.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the NCPC certifies that the rule will not have a significant
economic effect on a substantial number of small entities.
[[Page 45424]]
Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. It does not have an annual effect
on the economy of $100 million or more; will not cause a major increase
in costs for individuals, various levels of governments or various
regions; and does not have a significant adverse effect on completion,
employment, investment, productivity, innovation or the competitiveness
of U.S. enterprises with foreign enterprises.
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)
A statement regarding the Unfunded Mandates Reform Act is not
required. The rule neither imposes an unfunded mandate of more than
$100 million per year nor imposes a significant or unique effect on
State, local or tribal governments or the private sector.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. The rule does not substantially and directly
affect the relationship between the Federal and state governments.
Civil Justice Reform (Executive Order 12988)
The General Counsel of NCPC has determined that the rule does not
unduly burden the judicial system and meets the requirements of
Executive Order 12988 3(a) and 3(b)(2).
Paperwork Reduction Act
The rule does not contain information collection requirements, and
it does not require a submission to the Office of Management and Budget
under the Paperwork Reduction Act.
National Environmental Policy Act
The rule is of an administrative nature, and its adoption does not
constitute a major Federal action significantly affecting the quality
of the human environment. NCPC's adoption of the rule will have minimal
or no effect on the environment; impose no significant change to
existing environmental conditions; and will have no cumulative
environmental impacts.
Clarity of the Regulation
Executive Order 12866, Executive Order 12988, and the Presidential
Memorandum of June 1, 1998 requires the NCPC to write all rules in
plain language. NCPC maintains the rule meets this requirement.
Public Availability of Comments
Be advised that personal information such as name, address, phone
number electronic address, or other identifying personal information
contained in a comment may be made publically available. Individuals
may ask NCPC to withhold the personal information in their comment, but
there is no guarantee the agency can do so.
List of Subjects in 1 CFR Part 601
Environmental impact statements, Environmental protection.
0
For the reasons stated in the preamble, the National Capital Planning
Commission adds 1 CFR part 601 to read as follows:
PART 601--IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT
Subpart A--General
Sec.
601.1 Purpose.
601.2 Policies.
601.3 Definitions.
Subpart B--Lead and Cooperating Agencies
601.4 Designation of Lead Agency.
601.5 Lead Agency obligations.
601.6 Resolving disputes over Lead Agency status.
601.7 Cooperating Agencies.
Subpart C--NEPA Submission Schedules
601.8 NEPA submission schedule for applications governed by the
National Capital Planning Act.
601.9 NEPA submission schedule for applications governed by the
Commemorative Works Act.
Subpart D--Initiating the NEPA Process
601.10 Characteristics of Commission actions eligible for a
Categorical Exclusion.
601.11 Extraordinary Circumstances.
601.12 National Capital Planning Commission Categorical Exclusions.
Subpart E--Environmental Assessments
601.13 Characteristics of Commission actions eligible for an
Environmental Assessment.
601.14 Commission actions generally eligible for an Environmental
Assessment.
601.15 Process for preparing an Environmental Assessment.
601.16 Finding of No Significant Impact.
601.17 Supplemental Environmental Assessments.
Subpart F--Environmental Impact Statements
601.18 Requirement for and timing of an Environmental Impact
Statement.
601.19 Context, intensity, and significance of impacts.
601.20 Streamlining Environmental Impact Statements.
601.21 Programmatic Environmental Impact Statements and tiering.
601.22 Contents of an Environmental Impact Statement.
601.23 The Environmental Impact Statement process.
601.24 Final Environmental Impact Statement.
601.25 Record of Decision.
601.26 Supplemental Environmental Impact Statement.
601.27 Legislative Environmental Impact Statement.
Subpart G--Dispute Resolution
601.28 Dispute resolution.
601.29 [Reserved]
Authority: 40 CFR 1507.3.
Subpart A--General
Sec. 601.1 Purpose.
This part establishes rules that supplement the Council on
Environmental Quality's (CEQ) National Environmental Policy Act (NEPA)
regulations that the National Capital Planning Commission (NCPC or
Commission) and its applicants shall follow to ensure:
(a) Compliance with NEPA, as amended (42 U.S.C. 4321 et seq.) and
CEQ regulations for implementing the procedural provisions of NEPA (40
CFR parts 1501 through 1508).
(b) Compliance with other laws, regulations, and Executive Orders
identified by NCPC as applicable to a particular application.
Sec. 601.2 Policies.
Consistent with 40 CFR 1500.1 and 1500.2, it shall be the policy of
the NCPC to:
(a) Comply with the procedures and policies of NEPA and other
related laws, regulations, and orders applicable to Commission actions.
(b) Provide applicants sufficient guidance to ensure plans and
projects comply with the rules of this part and other laws,
regulations, and orders applicable to Commission actions.
(c) Integrate NEPA into its decision-making process at the earliest
possible stage.
(d) Integrate the requirements of NEPA and other planning and
environmental reviews required by law including, without limitation,
the National Historic Preservation Act, 54 U.S.C. 306108 (NHPA), to
ensure all such procedures run concurrently.
(e) Use the NEPA process to identify and assess the reasonable
alternatives to proposed actions that will avoid or minimize adverse
effects on the quality of the human environment in the National Capital
Region.
[[Page 45425]]
(f) Use all practicable means to protect, restore, and enhance the
quality of the human environment including the built and socioeconomic
environments and historic properties within the National Capital
Region.
(g) Streamline the NEPA process and Environmental Impact Statements
(EIS) to the maximum extent possible.
(h) Use the NEPA process to assure orderly and effective NCPC
decision-making and to foster meaningful public involvement in NCPC's
decisions.
Sec. 601.3 Definitions.
For purposes of this part, the following definitions shall apply:
Administrative Record means a compilation of all materials (written
and electronic) that were before the agency at the time it made its
final decision. An Administrative Record documents an agency's
decision-making process and the basis for the decision.
Categorical Exclusion or CATEX means, as defined by 40 CFR 1508.4,
a category of actions which do not individually or cumulatively have a
significant effect on the human environment except under Extraordinary
Circumstances and which have been found to have no such effect in
procedures adopted by a Federal Agency (NCPC) in implementation of
CEQ's regulations and for which, therefore, neither an Environmental
Assessment (EA) nor an EIS is required.
Central Area means the geographic area in the District of Columbia
comprised of the Shaw School and Downtown Urban Renewal Areas or such
other area as the District of Columbia and NCPC shall subsequently
jointly determine.
Chairman means the Chairman of the National Capital Planning
Commission appointed by the President, pursuant to 40 U.S.C. 8711(c).
Commemorative Works Act or CWA means the Federal law codified at 40
U.S.C. 8901 et seq. that sets forth the requirements for the location
and development of new memorials and monuments on land under the
jurisdiction of the National Park Service (NPS) or the General Services
Administration (GSA) in the District of Columbia and its Environs.
Commission means the National Capital Planning Commission created
by 40 U.S.C. 8711.
Comprehensive Plan means The Comprehensive Plan for the National
Capital: Federal Elements prepared and adopted by the Commission
pursuant to 40 U.S.C. 8721(a).
Cooperating Agency means, as defined in 40 CFR 1508.5, any Federal
Agency other than a Lead Agency that has jurisdiction by law or special
expertise with respect to a proposal (or reasonable alternative) for
legislation or other major action significantly affecting the quality
of the human environment; a state or local agency of similar
qualifications; or when the effects are on a reservation, an Indian
Tribe when agreed to by the Lead Agency.
Cumulative impact means, as defined in 40 CFR 1508.7, the impact on
the environment that results from the incremental impact of an action
when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or Non-Federal) or person
undertakes such other actions. Cumulative impacts can result from
individually minor, but collectively significant, actions taking place
over a period of time.
Emergency Circumstances means a sudden and serious occurrence or
situation requiring immediate attention to protect the lives and safety
of the public and protect property and ecological resources and
functions from imminent harm.
Environmental Assessment or EA means, as defined in 40 CFR 1508.9,
a concise document for which a Federal Agency is responsible that
serves to briefly provide sufficient evidence and analysis for
determining whether to prepare an EIS or a FONSI; aid an agency's
compliance with NEPA when no EIS is necessary; facilitate preparation
of an EIS when one is necessary; and includes a brief discussion of the
need for the proposal, alternatives as required by section 102(2)(E) of
NEPA, the environmental impacts of the proposed action and
alternatives, and a listing of agencies and persons consulted.
Environmental Document means, as set forth in 40 CFR 1508.10, an
Environmental Assessment, and Environmental Impact Statement, and for
purposes of these regulations, a Categorical Exclusion determination.
Environmental Impact Statement or EIS means, as defined in 40 CFR
1508.11, a detailed written statement as required by 42 U.S.C.
4332(2)(C).
Environs means the territory surrounding the District of Columbia
included in the National Capital Region pursuant to 40 U.S.C.
8702(a)(1).
Executive Director means the Executive Director employed by the
National Capital Planning Commission pursuant to 40 U.S.C. 8711(d).
Executive Director's Recommendation or EDR means a concise written
report and recommendation prepared by NCPC staff under the direction of
NCPC's Executive Director regarding a proposed action that is
transmitted to the Commission for its consideration.
Extraordinary Circumstances means special circumstances that when
present negate an agency's ability to categorically exclude a project
and require an agency to undertake further NEPA review.
Federal Agency means the executive agencies of the Federal
government as defined in 5 U.S.C. 105.
Finding of No Significant Impact or FONSI means, as defined at 40
CFR 1508.13, a document prepared by NCPC or a Federal Agency applicant
that briefly presents the reasons why an action, not otherwise excluded
(40 CFR 1508.4), will not have a significant effect on the human
environment and for which an EIS will not be prepared. It shall include
the EA or a summary of it and shall note any other EAs or EISs related
to it (40 CFR 1501.7(a)(5)). If the EA is included in the FONSI, the
FONSI need not repeat any of the discussion in the EA but may include
the EA by reference.
Lead Agency means, as defined in 40 CFR 1508.16, the agency or
agencies preparing or having primary responsibility for preparing an EA
or an EIS.
Memorandum of Agreement or MOA means for purposes of implementing
the regulations in this part, a written agreement entered into between
a Lead, Co-lead, Cooperating Agency, or a Non-Federal Agency to
facilitate implementation of NEPA and preparation of the requisite
environmental documentation. A MOA can be written at a programmatic
level to apply to all projects involving NCPC and particular applicant
or on a project-by-project basis.
Mitigation means, as defined in 40 CFR 1508.20, avoiding an impact
altogether by not taking a certain action or parts of an action;
minimizing impacts by limiting the degree or magnitude of the action
and its implementation; rectifying the impact by repairing,
rehabilitating, or restoring the affected environment; reducing or
eliminating the impact over time by preservation and maintenance
operations during the life of the action; and compensating for the
impact by replacing or providing substitute resources or environments.
Monumental Core means the general area encompassed by the U.S.
Capitol grounds, the National Mall, the Washington Monument grounds,
the White House grounds, the Ellipse, West Potomac Park, East Potomac
Park, the Southwest Federal Center, the Federal Triangle area,
President's Park, the Northwest Rectangle, Arlington
[[Page 45426]]
Cemetery and the Pentagon area, and Joint Base Myer-Henderson Hall.
National Capital Planning Act means the July 1952 legislative
enactment, codified at 40 U.S.C. 8701 et seq. that created the present
day National Capital Planning Commission and conferred authority upon
it to serve as the planning authority for the Federal government in the
National Capital Region.
National Capital Region means, as defined in 40 U.S.C. 8702(2), the
District of Columbia; Montgomery and Prince Georges Counties in
Maryland; Arlington Fairfax, Loudon, and Prince William Counties in
Virginia; and all cities in Maryland or Virginia in the geographic area
bounded by the outer boundaries of the combined area of the counties
listed.
Non-Federal Agency for purposes of the National Environmental
Policy Act and the regulations in this part means those applicants
outside the definition of Federal Agency that prepare plans for or
undertake projects on land within the National Capital Region subject
to NCPC's jurisdiction. Non-Federal Agencies include, without
limitation, the Smithsonian Institution, the John F. Kennedy Center for
the Performing Arts, the National Gallery of Art, the United States
Institute of Peace, the Government of the District of Columbia, private
parties undertaking development on Federal land, and the Maryland
National Capital Parks and Planning Commission. In most instances, the
Non-Federal Agency has legal jurisdiction over the project and special
expertise relative to the project's components.
Notice of Availability or NOA means a public notice or other means
of public communication that announces the availability of an EA or an
EIS for public review.
Notice of Intent or NOI means, as defined in 40 CFR 1508.22, a
notice published in the Federal Register that an EIS will be prepared
and considered. The notice shall briefly describe the proposed action
and possible alternatives; describe the agency's proposed Public
Scoping process including whether, when, and where any Public Scoping
meeting will be held; and state the name and address of a person within
the agency who can answer questions about the proposed action and the
EIS. For purposes of NCPC implementation of NEPA, NCPC may determine,
at its sole discretion, to publish an NOI that an EA will be prepared
and considered.
Purpose and need as described in 40 CFR 1502.13 means the
underlying purpose and need for agency action to which the agency is
responding in proposing the alternatives including the proposed action.
Programmatic NEPA Review means a broad or high level NEPA review
that assesses the environmental impacts of proposed policies, plans or
programs, or projects for which subsequent project or site-specific
NEPA analysis will be conducted. A Programmatic NEPA Review utilizes a
tiering approach.
Record of Decision or ROD means a concise public record of an
agency's decision in cases requiring an EIS that is prepared in
accordance with 40 CFR 1505.2.
Scope means, as defined in 40 U.S.C. 1508.25, the range of actions
(connected, cumulative and similar); alternatives (no action, other
reasonable courses of action; and Mitigation measures not included in
the proposed action); and impacts (direct, indirect and cumulative)
considered in an EIS or an EA. The process of defining and determining
the scope of issues to be addressed in an EIS or EA with public
involvement shall be referred to as Public Scoping. Internal scoping
activities shall be referred to by the word scoping without
capitalization.
Submission Guidelines means the formally-adopted document which
describes the application process and application requirements for
projects requiring review by the Commission.
Tiering means, as defined in 40 CFR 1508.28, an approach where
Federal Agency applicants, NCPC on behalf of Non-Federal Agency
applicants, or NCPC for its own projects initially consider the broad,
general impacts of a proposed program, plan, policy, or large scale
project--or at the early stage of a phased proposal--and then conduct
subsequent narrower, decision focused reviews.
Subpart B--Lead and Cooperating Agencies
Sec. 601.4 Designation of Lead Agency.
(a) A Federal Agency applicant shall serve as the Lead Agency and
prepare an EA or an EIS for:
(1) An application that requires Commission approval; and
(2) An application for action on a master plan that includes future
projects that require Commission approval; provided that:
(i) The applicant intends to submit individual projects covered by
the master plan to the Commission within five years of the date of
Commission action on the master plan; and
(ii) The applicant intends to use the master plan EA or EIS to
satisfy its NEPA obligation for specific projects referenced in the
master plan.
(b) NCPC shall serve as Lead Agency and prepare an EA or an EIS
for:
(1) An application submitted by a Non-Federal Agency that requires
Commission approval;
(2) An application submitted by a Non-Federal Agency for action on
a master plan that includes future projects that require Commission
approval; provided that:
(i) The Non-Federal Agency applicant intends to submit individual
projects covered by the master plan to the Commission within five years
of the date of Commission action on the master plan; and
(ii) The Non-Federal Agency applicant intends to use the master
plan EA or EIS to satisfy its NEPA obligation for a specific project
referenced in the master plan; and
(3) An application for approval of land acquisitions undertaken
pursuant to 40 U.S.C. 8731-8732.
Sec. 601.5 Lead Agency obligations.
(a) The obligations of a Federal Agency applicant designated as the
Lead Agency in accordance with Sec. 601.4(a) shall include, without
limitation, the following:
(1) Act as Lead Agency as defined in 40 CFR 1501.5 for the NEPA
process.
(2) Integrate other environmental reviews and other applicable
regulatory requirements to include, without limitation, Section 106 of
the NHPA.
(3) Allow NCPC, to participate as a Co-lead or Cooperating Agency,
as appropriate, and consult with Commission staff as early as possible
in the planning process to obtain guidance with respect to the goals,
objectives, standards, purpose, need, and alternatives for the NEPA
analysis.
(4) Invite affected Federal, state, regional and local agencies to
participate as a Cooperating Agency in the NEPA process.
(5) Consult with the affected agencies as early as possible in the
planning process to obtain guidance on the goals, objectives,
standards, purpose, need, and alternatives for the NEPA analysis.
(6) Work with Cooperating Agencies and stakeholders in the
following manner:
(i) Keep them informed on the project schedule and substantive
matters; and
(ii) Allow them an opportunity to review and comment within
reasonable time frames on, without limitation, Public Scoping notices;
technical reports; public materials (including responses to comments
received from the public); potential Mitigation measures; the draft EA
or EIS; and the draft FONSI or ROD.
[[Page 45427]]
(7) Prepare the appropriate Environmental Document consistent with
the applicant's NEPA regulations, the requirements of this part, and
CEQ regulations. If the Lead Agency applies a CATEX and NCPC as
Cooperating Agency does not have a corresponding CATEX that it can
apply, the Lead Agency shall prepare an EA to satisfy NCPC's NEPA
requirement.
(8) Determine in its Environmental Document whether an action will
have an adverse environmental impact or would limit the choice of
reasonable alternatives under 40 CFR 1505.1(e) and take appropriate
action to ensure that the objectives and procedures of NEPA are
achieved.
(9) Prepare, make available for public review, and issue a FONSI or
ROD.
(10) Ensure that the draft and final EIS comply with the
requirements of 40 CFR 1506.5(c) and include a disclosure statement
executed by any contractor (or subcontractor) under contract to prepare
the EIS document and that the disclosure appears as an appendix to the
EIS.
(11) Compile, maintain, and produce the Administrative Record.
(12) Provide periodic reports on implementation of Mitigation
measures to NCPC and other Cooperating Parties consistent with a
schedule established in the Environmental Document. All such reports
shall be posted on NCPC's Web site.
(13) For an application that has yet to obtain final Commission
approval, re-evaluate and update Environmental Documents that are five
or more years old as measured from the time of their adoption when
either or both of the following criteria apply:
(i) There are substantial changes to the proposed action that are
relevant to environmental concerns.
(ii) There are significant new circumstances or information that
are relevant to environmental concerns and have a bearing on the
proposed action or its impacts.
(14) Consult with NCPC on the outcome of the re-evaluation of its
Environmental Document; provided that if NCPC disagrees with the Lead
Agency's conclusion on the need to update its Environmental Document,
NCPC may, at its sole discretion, either prepare its own Environmental
Document or decline to consider the application.
(b) When NCPC serves as Lead Agency in accordance with Sec.
601.4(b), in addition to the obligations listed in paragraphs (a)(1)
through (14) of this section, NCPC shall:
(1) Require Non-Federal Agency applicants other than the District
of Columbia and the Maryland National Capital Parks and Planning
Commission to enter into a MOA with NCPC. In the MOA, and in subsequent
implementation thereof, the Non-Federal Agency shall commit to
providing all necessary assistance to facilitate and ensure NCPC's
compliance with its NEPA obligation.
(2) The MOA may be prepared as a programmatic MOA that addresses a
uniform approach for the treatment of all applications from a
particular Non-Federal Agency applicant or address a specific Non-
Federal Agency application. The request to enter into a project
specific MOA shall be made after a determination is made as to the
inability to utilize a CATEX.
(3) A MOA with a Non-Federal Agency shall specify, without
limitation, roles and responsibilities; project information necessary
to prepare the proper Environmental Document; project timelines and
submission schedules; the submission of periodic reports on
implementation of Mitigation measures, principal contacts and contact
information; and a mechanism for resolving disputes.
(4) Upon adoption of the MOA, NCPC shall publish the MOA in the
Federal Register and post it on NCPC's Web site.
Sec. 601.6 Resolving disputes over Lead Agency status.
(a) In the event of a dispute with a Federal Agency applicant over
Co-Lead Agency status, the parties shall use their best efforts to
cooperatively resolve disputes at the working levels of their
respective agencies and, if necessary, by elevating such disputes
within their respective agencies.
(b) If internal resolution at higher agency levels proves
unsuccessful, at NCPC's sole discretion, one of the following actions
shall be pursued: The parties shall request CEQ's determination on
which agency shall serve as Lead, or NCPC shall prepare its own
Environmental Document, or NCPC shall decline to take action on the
underlying application.
(c) Disputes other than those relating to the designation of Lead
Agency status or Cooperating Agency status as described in Sec.
601.7(b), shall be governed by the requirements of subpart G of this
part.
Sec. 601.7 Cooperating Agencies.
(a) When a Federal Agency applicant serves as the Lead Agency, NCPC
shall act as a Cooperating Agency. As a Cooperating Agency, NCPC shall,
without limitation, undertake the following:
(1) Act as a Cooperating Agency as described in 40 CFR 1501.6.
(2) Assist in the preparation of and sign a MOA with terms
agreeable to NCPC if requested by the Lead Agency. At the Lead Agency's
discretion, the MOA may be prepared as a programmatic MOA that
addresses a uniform approach for the treatment of all applications
where NCPC serves as a Cooperating Agency or address a specific
application. The request to enter into a project specific MOA shall be
made after a determination is made by the Lead Agency on the inability
to utilize a CATEX.
(3) Participate in the NEPA process by providing comprehensive,
timely reviews of and comments on key NEPA materials including, without
limitation, Public Scoping notices; technical reports; documents
(including responses to comments received from the public); the draft
and final EA or EIS; and the Draft FONSI or ROD.
(4) Supply available data, assessments, and other information that
may be helpful in the preparation of the Environmental Document or the
Administrative Record in a timely manner.
(5) Make an independent evaluation of the Federal Agency
applicant's Environmental Document and take responsibility for the
scope and contents of the EIS or EA when it is sufficient as required
by 40 CFR 1506.5.
(6) Prepare and, following Commission final approval of an
application, sign a FONSI or ROD. Alternatively, if NCPC concurs with
the contents of a Federal Agency's FONSI or ROD, NCPC may co-sign the
Federal Agency's document following the Commission's final approval of
an application if co-signing is consistent with the Federal Agency's
NEPA regulations.
(7) Provide documentation requested and needed by the Lead Agency
for the Administrative Record.
(b) In the event a Federal Agency applicant fails to allow NCPC to
participate in a meaningful manner as a Cooperating Agency, the parties
shall agree to use their best efforts to cooperatively resolve the
issue at the working levels of their respective agencies, and, if
necessary, by elevating the issue within their respective agencies. If
internal resolution at higher agency levels is unsuccessful, the
parties may agree to seek mediation. Alternatively, NCPC may prepare
its own Environmental Document either as a stand-alone document or a
supplement to the Federal Agency applicant's Environmental Document or
[[Page 45428]]
take no action on the underlying application.
Subpart C--NEPA Submission Schedules
Sec. 601.8 NEPA submission schedule for applications governed by the
National Capital Planning Act.
(a) NEPA compliance requirements. Federal Agency applicants, and
NCPC for non-Federal Agency applications, shall comply with NEPA for
the following types of projects:
(1) Projects requiring Commission approval; and
(2) Master plans requiring Commission action with future projects
requiring subsequent Commission approval; provided that:
(i) The applicant intends to submit individual projects depicted in
the master plan to the Commission within five years of the date of
Commission action on the master plan; and
(ii) The applicant intends to use the master plan EA or EIS to
satisfy its NEPA obligation for specific projects referenced in the
master plan.
(b) Timing of NEPA compliance. When Federal Agency and Non-Federal
Agency applicants submit projects of the type described in paragraph
(a) of this section, the Federal Agency applicant or NCPC for a Non-
Federal agency application shall submit the requisite Environmental
Documentation timed to coincide with the Commission's review stages as
set forth in paragraphs (c) through (f) of this section.
(c) Concept review. The NEPA Public Scoping process shall have been
initiated by the Federal Agency applicant or NCPC for a Non-Federal
Agency application before the applicant submits an application for
concept review. Alternatively, if the Federal Agency applicant or NCPC
is contemplating use of a CATEX, the initiation of the Public Scoping
process may be deferred until the final decision on use of a CATEX is
made. Any NEPA information available at the time of concept review
shall be submitted by the Federal Agency applicant or NCPC for a Non-
Federal Agency application to facilitate effective Commission concept
review.
(d) Preliminary review. A Draft Environmental Document shall be
issued or published before the applicant submits an application for
preliminary review. The NEPA information shall be provided to the
Commission to facilitate the Commission's preliminary review and the
provision of meaningful Commission comments and direction.
(e) Final review. (1) At the time a Non-Federal Agency submits an
application for final approval, the determination (FONSI or ROD)
resulting from the Environmental Document shall be submitted by NCPC in
a form consistent with the rules of this part. At the time a Federal
Agency applicant submits an application to the Commission for final
review, the Federal Agency applicant shall submit a determination
(FONSI or ROD) in a form consistent with the applicant's NEPA
regulations. As a Cooperating Agency, NCPC may co-sign the Federal
Agency's FONSI or ROD following final Commission approval if co-signing
is consistent with the Federal Agency's NEPA regulations.
Alternatively, NCPC may prepare and sign its own independent document
in accordance with the requirements of Sec. Sec. 601.16(a) or
601.25(a) through (c).
(2) If at the time of final review, the Commission denies a Federal
Agency applicant's project and requests changes thereto, the Federal
Agency applicant shall proceed in a manner consistent with applicable
law. The Federal Agency applicant may pursue, among others, the option
of revising the project in a manner responsive to the Commission's
comments. If the Federal Agency pursues this option, it shall review
and consider the need for possible changes to its Environmental
Document and its FONSI or ROD. Upon resubmission of a revised
application for final review, the applicant shall submit a revised
Environmental Document and a revised FONSI or ROD if in its judgement
revised documents are necessary. If NCPC and the applicant disagree
regarding the need for a revised Environmental Document and FONSI or
ROD, the parties shall work together to resolve their differences. The
final decision regarding the need for a revised Environmental Document
and a revised FONSI or ROD shall be made by the Commission's Executive
Committee.
(f) Deviations from the submission schedule for Emergency
Circumstances. (1) This paragraph (f) applies when the following three
conditions exist: NCPC is the Lead Agency; Emergency Circumstances
exist; and an Extraordinary Circumstance as set forth in Sec. 601.11
is present that precludes use of a CATEX.
(2) When the three conditions described above exist, NCPC shall
undertake one of the following actions:
(i) When Emergency Circumstances render it necessary to take an
action that requires an EA, the Executive Director shall prepare a
concise, focused EA consistent with CEQ guidance. At the earliest
opportunity, the Commission shall grant approval for the EA.
(ii) Where Emergency Circumstances make it necessary for the
Commission to take an action with significant environmental impact
without observing the provisions of these regulations, NCPC shall
consult with CEQ about alternative arrangements. NCPC will limit such
arrangements to actions necessary to control the immediate impacts of
the emergency. Other actions remain subject to NEPA review.
Sec. 601.9 NEPA submission schedule for applications governed by the
Commemorative Works Act.
(a) Timing of NEPA compliance. When, pursuant to the Commemorative
Works Act, the National Park Service (NPS) or the General Services
Administration (GSA) submits an application to the Commission for
approval of a site and design for a commemorative work, NPS or GSA
shall be required to comply with NEPA and submit the NEPA documentation
timed to coincide with the Commission's review stages as set forth in
paragraphs (b) through (e) of this section.
(b) Concept site review. (1) The NEPA Scoping Process shall have
been initiated by NPS or GSA before the appropriate agency submits an
application to the Commission for concept site review. Available NEPA
documentation for all concept sites shall be included in the
application to facilitate effective Commission concept review.
(2) The Commission shall provide comments to NPS or GSA on the
multiple sites to assist the applicant in selecting a preferred site.
(c) Concept design review for preferred sites. (1) The NEPA Public
Scoping Process shall have been initiated before NPS or GSA submits an
application to the Commission for concept design review. Available NEPA
documentation shall be included in the application to facilitate
effective Commission concept review.
(2) The Commission shall provide comments to NPS or GSA on the
preferred site(s) and the concept designs for each site to facilitate
selection of a preferred site and refinement of the memorial design for
that site. The Commission may establish guidelines for the applicant to
follow in preparing its preliminary and final commemorative work design
to avoid, minimize or mitigate environmental impacts including adverse
effects on historic properties. If the Commission imposes guidelines to
avoid, minimize or mitigate adverse impacts, the applicant shall
address the guidelines in its Environmental Document.
(d) Preliminary site and design review. (1) NPS or GSA shall have
issued or
[[Page 45429]]
published its Draft Environmental Document for the site selection
process and the memorial design and shall have initiated the requisite
public comment period before the applicant submits an application for
preliminary site and design approval. The NEPA information shall be
provided to the Commission to facilitate the Commission's preliminary
review and the provision of meaningful Commission comments and
directions.
(2) The Commission shall take an action on the preliminary site and
design and provide comments to the applicant on the preliminary design
to assist the applicant's preparation of a final design.
(e) Final site and design review. (1) At the time NPS or GSA
submits an application to the Commission for final site and design
review, the determination (FONSI or ROD) resulting from the
Environmental Document shall be submitted by the applicant in a form
consistent with its NEPA regulations. As a Cooperating Agency, NCPC may
co-sign the applicant's FONSI or ROD following final Commission
approval if co-signing is consistent with the applicant's NEPA
regulations. Alternatively, NCPC may prepare and sign its own
independent document in accordance with the requirements of Sec.
601.16(a) or Sec. 601.25(a) through (c).
(2) If at the time of final review, the Commission denies the NPS
or GSA project and requests changes thereto, the applicant shall
proceed in a manner consistent with applicable law. The Federal Agency
applicant may pursue, among others, the option of revising the project
in a manner responsive to the Commission's comments. If the Federal
Agency pursues this option, it shall review and consider the need for
possible changes to its Environmental Document and its FONSI or ROD.
Upon resubmission of a revised application for final review, the
applicant shall submit a revised Environmental Document and a revised
FONSI or ROD if in its judgement revised documents are necessary. If
NCPC and the applicant disagree regarding the need for a revised
Environmental Document and FONSI or ROD, the parties shall work
together to resolve their differences. The final decision regarding the
need for a revised Environmental Document and a revised FONSI or ROD
shall be made by the Commission's Executive Committee.
Subpart D--Initiating the NEPA Process
Sec. 601.10 Characteristics of Commission actions eligible for a
Categorical Exclusion.
(a) A Categorical Exclusion is a type of action that does not
individually or cumulatively have a significant effect on the human
environment and which has been found to have no such effect by NCPC.
(b) Actions that generally qualify for application of a Categorical
Exclusion and do not require either an EA or an EIS exhibit the
following characteristics:
(1) Minimal or no effect on the human environment;
(2) No significant change to existing environmental conditions;
(3) No significant cumulative environmental impacts; and
(4) Similarity to actions previously assessed in an EA concluding
in a FONSI and monitored to confirm the FONSI.
Sec. 601.11 Extraordinary Circumstances.
(a) Before applying a CATEX listed in Sec. 601.12, the Executive
Director shall determine if a project or plan requires additional
environmental review or analysis due to the presence of Extraordinary
Circumstances. If any of the Extraordinary Circumstances listed in
paragraphs (b)(1) through (11) of this section are present, the
Executive Director shall not apply a CATEX and ensure that the proper
Environmental Document (EA or EIS) shall be prepared and made available
to the Commission before the Commission takes action on the matter.
(b) Extraordinary Circumstances that negate the application of a
CATEX include:
(1) A reasonable likelihood of significant impact on public health
or safety.
(2) A reasonable likelihood of significant environmental impacts on
sensitive resources unless the impacts have been or will be avoided,
minimized, or mitigated to non-significant levels through another
process to include, without limitation, Section 106 of the NHPA.
Environmentally sensitive resources include without limitation:
(i) Proposed federally listed, threatened or endangered species or
their designated critical habitats.
(ii) Properties listed or eligible for listing on the National
Register of Historic Places.
(iii) Areas having special designation or recognition based on
Federal law or an Executive Order, to include without limitation,
National Historic Landmarks, floodplains, wetlands, and National Parks.
(iv) Cultural, scientific or historic resources.
(3) A reasonable likelihood of effects on the environment that are
risky, highly uncertain, or unique.
(4) A reasonable likelihood of violating an Executive Order, or
Federal, state or local law or requirements imposed for the protection
of the environment.
(5) A reasonable likelihood of causing a significant increase in
surface transportation congestion, disruption of mass transit, and
interference with pedestrian and bicycle movements.
(6) A reasonable likelihood of significantly degrading air quality
or violating air quality control standards under the Clean Air Act (42
U.S.C. 7401-7671q).
(7) A reasonable likelihood of significantly impacting water
quality, public water supply systems, or state or local water quality
control standards under the Clean Water Act (33 U.S.C. 1251 et seq.)
and the Safe Drinking Act (42 U.S.C. 300f).
(8) A reasonable likelihood of a disproportionately high and
adverse effect on low income and minority populations.
(9) A reasonable likelihood of degrading existing unsatisfactory
environmental conditions.
(10) A reasonable likelihood of establishing a precedent for future
action or making a decision in principle about future actions with
potentially significant environmental effects.
(11) Any other circumstance that makes the action sufficiently
unique in its potential impacts on the human environment that further
environmental analysis and review is appropriate.
(c) The Executive Director shall include in his/her EDR, or the
documentation of a delegated action, his/her decision to apply a
Categorical Exclusion including consideration of possible Extraordinary
Circumstances or not apply a Categorical Exclusion because of
Extraordinary Circumstances.
Sec. 601.12 National Capital Planning Commission Categorical
Exclusions.
(a) Commission actions that may be categorically excluded and
normally do not require either an EA or an EIS are listed in paragraphs
(a)(1) through (13) of this section. An action not specifically
included in the list is not eligible for a Categorical Exclusion even
if it appears to meet the general criteria listed in Sec. 601.10(b).
(1) Approval of the installation or restoration of onsite primary
or secondary electrical distribution systems including minor solar
panel arrays.
(2) Approval of the installation or restoration of minor site
elements, such as but not limited to identification signs, sidewalks,
patios, fences, curbs, retaining walls, landscaping, and trail or
stream improvements. Additional features include water distribution
lines
[[Page 45430]]
and sewer lines which involve work that is essentially replacement in
kind.
(3) Approval of the installation or restoration of minor building
elements, such as, but not limited to windows, doors, roofs, building
signs, and rooftop equipment and green roofs.
(4) Adoption of a Federal Element of the Comprehensive Plan or
amendment thereto or broad based policy or feasibility plans prepared
and adopted by the Commission in response to the Comprehensive Plan.
(5) Approval of the installation of communication antennae on
Federal buildings and co-location of communication antennae on Federal
property consistent with GSA Bulletin FMR D-242, Placement of
Commercial Antennas on Federal Property.
(6) Approval of Federal and District government agency proposals
for new construction, building expansion, or improvements to existing
facilities, when all of the following apply:
(i) The new structure and proposed use are in compliance with local
planning and zoning and any applicable District of Columbia, state, or
Federal requirements.
(ii) The site and the scale of construction are consistent with
those of existing adjacent or nearby buildings.
(iii) The proposed use will not substantially increase the number
of motor vehicles in the vicinity of the facility.
(iv) There is little to no evidence of unresolved resource
conflicts or community controversy related to environmental concerns or
other environmental issues.
(7) Approval of transfers of jurisdiction pursuant to 40 U.S.C.
8124 that are not anticipated to result in changes in land-use and that
have no potential for environmental impact.
(8) Approval of a minor modification to a General Development Plan
applicable to lands acquired pursuant to the Capper-Cramton Act, 46
Stat. 482 (1930), as amended, when non-significant environmental
impacts are anticipated.
(9) Reorganization of NCPC.
(10) Personnel actions, including, but not limited to,
investigations; performance reviews; award of personal service
contracts, promotions and awards; reductions in force, reassignments
and relocations; and employee supervision and training.
(11) Legal activities including, but not limited to, legal advice
and opinions; litigation or other methods of dispute resolution; and
procurement of outside legal services.
(12) Procurement of goods and services, transactions, and other
types of activities related to the routine and continuing
administration, management, maintenance and operations of the
Commission or its facilities.
(13) Adoption and issuance of rules, directives, official policies,
guidelines, and publications or recommendations of an educational,
financial, informational, legal, technical or procedural nature.
(b) The Executive Director shall include in his/her EDR, or the
documentation of a delegated action, his/her decision to apply a
Categorical Exclusion and the rationale for this decision.
Subpart E--Environmental Assessments
Sec. 601.13 Characteristics of Commission actions eligible for an
Environmental Assessment.
(a) An EA is a concise document with sufficient information and
analysis to enable the Executive Director to determine whether to issue
a FONSI or prepare an EIS.
(b) Commission actions that generally require an EA exhibit the
following characteristics:
(1) Minor but likely insignificant degradation of environmental
quality;
(2) Minor but likely insignificant cumulative impact on
environmental quality; and
(3) Minor but likely insignificant impact on protected resources.
Sec. 601.14 Commission actions generally eligible for an
Environmental Assessment.
Commission actions that typically require preparation of an EA
include without limitation:
(a) Approval of final plans for Federal public buildings in the
District of Columbia, and the provisions for open space in and around
the same, pursuant to 40 U.S.C. 8722(d) and D.C. Code 2-1004(c).
(b) Approval of final plans for District of Columbia public
buildings and the open space around them within the Central Area
pursuant to 40 U.S.C. 8722(e) and D.C. Code 2-1004(d).
(c) Recommendations to a Federal or District of Columbia agency on
any master plan or master plan modification submitted to the Commission
that include proposed future projects that require Commission approval
pursuant to 40 U.S.C. 8722(d)-(e) and D.C. Code 2-1004(c)-(d) within a
five-year timeframe.
(d) Approval of a final site and design for a commemorative work
authorized under the Commemorative Works Act pursuant to 40 U.S.C.
8905.
(e) Approval of transfers of jurisdiction over properties within
the District of Columbia owned by the United States or the District
among or between Federal and District authorities, pursuant to 40
U.S.C. 8124, unless such transfers met the criteria of Sec.
601.12(a)(7).
Sec. 601.15 Process for preparing an Environmental Assessment.
An EA prepared by NCPC as the Lead Agency for a project requiring
Commission approval shall comply with the following requirements:
(a) The EA shall include, without limitation, a brief discussion of
the proposed action; the purpose and need for the proposed action; the
environmental impacts of the proposed action; the environmental impacts
of the alternatives considered; Mitigation measures, if necessary; and
a list of agencies and persons consulted in preparation of the
assessment.
(b) The NCPC shall involve to the extent practicable applicants;
Federal and District of Columbia agencies; the public; and stakeholders
in the preparation of an EA.
(c) The NCPC, at the sole discretion of the Executive Director, may
undertake Public Scoping for an action requiring an EA. The Public
Scoping shall generally commence after issuance of a public notice in a
media source with widespread circulation and the NCPC Web site of
NCPC's intent to prepare an EA. The notice shall include the date, time
and location of the Public Scoping meeting.
(d) The NCPC may solicit public review and comment of a Draft EA.
The public comment period generally shall be thirty (30) calendar days.
The public comment period shall begin when the Executive Director
announces the availability of the Draft EA on the NCPC Web site
(www.ncpc.gov). The NCPC, at its sole discretion, may decline to
circulate a draft EA for non-controversial projects.
Sec. 601.16 Finding of No Significant Impact.
(a) If NCPC is the Lead Agency and the final EA supports a FONSI,
NCPC shall prepare and execute a FONSI. The FONSI shall be prepared
following closure of the discretionary public comment period on a Draft
EA, or if no public comment period is deemed necessary, at the
conclusion of the preparation of an EA. The FONSI shall briefly state
the reasons why the proposed action will not have a significant effect
on the environment and include the EA or a summary thereof, any
Mitigation commitments, and a schedule for implementing the Mitigation
commitments. The FONSI shall be signed following the
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Commission final approval of the applicant's project.
(b) If NCPC is not the Lead Agency, it shall evaluate the adequacy
of the Lead Agency's FONSI. If NCPC determines the FONSI to be
adequate, NCPC shall proceed as follows. If consistent with the Federal
Agency's NEPA regulations, NCPC may co-sign the Lead Agency's FONSI
following the Commission final approval of the application.
Alternatively, NCPC may prepare and execute its own FONSI consistent
with the requirements of paragraph (a) of this section and sign the
FONSI following the Commission's final approval of the project.
(c) In certain limited circumstances described in 40 CFR
1501.4(e)(2)(i) and (ii), a FONSI prepared by NCPC shall be available
for public review for thirty (30) days before NCPC makes it final
determination. NCPC shall also publish all FONSIs on its Web site seven
(7) calendar days before the Commission takes action on the underlying
application.
(d) If the Commission determines a Lead Agency's EA does not
support a FONSI, either the Lead Agency shall prepare an EIS, or the
Commission shall not approve or consider further the underlying
application.
Sec. 601.17 Supplemental Environmental Assessments.
(a) The NCPC shall prepare a supplemental EA if five or more years
have elapsed since adoption of the EA and:
(1) There are substantial changes to the proposed action that are
relevant to environmental concerns; or
(2) There are significant new circumstances or information that are
relevant to environmental concerns and have a bearing on the proposed
action or its impacts.
(b) The NCPC may supplement a Draft or Final EA at any time to
further the purposes of NEPA.
(c) The NCPC shall prepare, circulate, and file a supplement to a
Draft or Final EA, and adopt a FONSI in accordance with the
requirements of Sec. Sec. 601.15 and 601.16. If NCPC is not the Lead
Agency, it shall proceed as outlined in Sec. 601.16(b) and (c).
Subpart F--Environmental Impact Statements
Sec. 601.18 Requirement for and timing of an Environmental Impact
Statement.
Prior to the Commission's approval of a major Federal action
significantly affecting the quality of the human environment, the
Executive Director shall prepare an EIS for a Non-Federal Agency
application.
Sec. 601.19 Context, intensity, and significance of impacts.
(a) As required by 40 CFR 1508.27(a) and (b), NCPC's determination
of whether an EIS is required and whether impacts are significant shall
be made with consideration to the context and intensity of the impacts
associated with a proposed action.
(b) The significance of an action is determined in the context of
its effects on society as a whole, the National Capital Region and its
Environs, the particular interests affected, and the specific locality
or area within which the proposed action is located. The context will
vary from project to project and will be based on the type, attributes,
and characteristics of a particular proposal.
(c) The significance of an action is also determined based on the
severity of impacts imposed by the proposal. Severity shall be
determined based on an evaluation of a proposal in the manner outlined
in 40 CFR 1508.27(b)(1) through (10). The evaluation shall also be
informed by the relevant policies of ``The Comprehensive Plan for the
National Capital: Federal Elements'' and other applicable Commission
plans and programs. Proposed actions that conflict with or delay
achievement of the goals and objectives of Commission plans and
programs are generally more likely to be found to have significant
impacts than proposals that are consistent with Commission plans and
programs.
(d) Proposed actions shall also be deemed significant and require
an EIS if they exhibit at least one of the following characteristics:
(1) The proposed action results in a substantial change to the
Monumental Core.
(2) The proposed action causes substantial alteration to the
important historical, cultural, and natural features of the National
Capital and its Environs.
(3) The proposed action is likely to be controversial because of
its impacts on the human environment.
Sec. 601.20 Streamlining Environmental Impact Statements.
The NCPC as Lead Agency shall use all available techniques to
minimize the length of an EIS. Such techniques include, without
limitation, drafting an EIS in clear, concise language; preparing an
analytic vs. encyclopedic EIS; reducing emphasis on background
information; using the scoping process to emphasize significant issues
and de-emphasize non-significant issues; incorporating relevant
information by reference; using a programmatic EIS and tiering to
eliminate duplication in subsequent EISs; and following the format
guidelines of Sec. 601.22.
Sec. 601.21 Programmatic Environmental Impact Statements and tiering.
(a) The NCPC shall prepare a programmatic Environmental Document
(Programmatic EA or PEA or Programmatic EIS or PEIS) to assess the
impacts of proposed projects and plans when there is uncertainty
regarding the timing, location and environmental impacts of subsequent
implementing actions. At the time NCPC undertakes a site or project
specific action within the parameters of the PEA or PEIS, NCPC shall
tier its Environmental Document by summarizing information in the PEIS
or PEA, as applicable, and concentrate on the issues applicable to the
specific action.
(b) A PEIS or PEA prepared by NCPC shall be governed by the CEQ
regulations and the rules of this part.
Sec. 601.22 Contents of an Environmental Impact Statement.
(a) When NCPC serves as Lead Agency for an EIS, the following
information shall be included in the EIS:
(1) A cover sheet. The cover sheet shall be one-page and include a
list of responsible and Cooperating Agencies; the title of the proposed
action that is the subject of the EIS; the name, address, and telephone
number of the NCPC point of contact; the designation as to whether the
statement is draft, final, or draft or final supplement; a one
paragraph abstract of the EIS; and the date by which comments must be
received.
(2) A summary. The summary shall accurately summarize the
information presented in the EIS. The summary shall focus on the main
conclusions, areas of controversy, and the issues to be resolved.
(3) A table of contents. The table of contents shall allow a reader
to quickly locate subject matter in the EIS--either by topic area and/
or alternatives analyzed.
(4) The purpose and need. A statement of the purpose of and need
for the action briefly stating the underlying purpose and need to which
the agency is responding.
(5) The identification of alternatives including the proposed
action. This section shall provide a brief description and supporting
documentation for all alternatives including the proposed action; the
no action alternative; all reasonable alternatives including those not
within the jurisdiction of the agency; alternatives considered but
eliminated and the reason for their
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elimination; the agency's preferred alternative, if one exists; the
environmentally preferred alternative; and Mitigation measures not
already included in the proposed action.
(6) The identification of the affected environment. This section
shall provide a succinct description of the environment to be affected
by the proposed action and the alternatives considered. This section
shall include, if applicable, other activities in the area affected by
or related to the proposed action.
(7) The identification of environmental consequences. This section
shall focus on the environmental impacts of the alternatives including
the proposed action, any adverse environmental effects which cannot be
avoided should the proposal be implemented, the relationship between
short-term uses of the environment and the maintenance and enhancement
of long-term productivity, and any irreversible commitments of
resources which would be involved if the proposal is implemented. The
impacts shall be discussed in terms of direct, indirect and cumulative
effects and their significance, as well as any appropriate means to
mitigate adverse impacts. The discussion shall also include issues and
impact topics considered but dismissed to reveal non-impacted
resources. Resource areas and issues requiring consideration shall
include those identified in the scoping process, and, without
limitation, the following:
(i) Possible conflicts between the proposed action and the land use
plans, policies, or controls (local, state, or Indian tribe) for the
area concerned.
(ii) Natural and biological resources including topography,
hydrology, soils, flora, fauna, floodplains, wetlands, and endangered
species.
(iii) Air quality.
(iv) Noise.
(v) Water resources including wastewater treatment and storm water
management.
(vi) Utilities including energy requirements and conservation.
(vii) Solid waste and hazardous waste generation/removal.
(viii) Community facilities.
(ix) Housing.
(x) Transportation network.
(xi) Socio-cultural and economic environments.
(xii) Environmental Justice and the requirements of Executive Order
12898 (Federal Actions to Address Environmental Justice in Minority
Populations).
(xiii) Urban quality and design of the built environment including
visual resources and aesthetics.
(xiv) Historic and cultural resources to include documentation of
the results of the Section 106 Consultation process.
(xv) Public health and safety.
(8) A list of preparers. This list shall include all pertinent
organizations, agencies, individuals, and government representatives
primarily responsible for the preparation of the EIS and their
qualifications.
(9) An index. The index shall be structured to reasonably assist
the reader of the Draft or Final EIS in identifying and locating major
topic areas or elements of the EIS information. The level of detail of
the index shall provide sufficient focus on areas of interest to any
reader not just the most important topics.
(10) An appendix. The appendix shall consist of material prepared
in connection with an EIS (as distinct from material which is
incorporated by reference) and material which substantiates any
analysis fundamental to the EIS. The material in the appendix shall be
analytical and relevant to the decision to be made. The appendix shall
be posted on NCPC's Web site.
(b) [Reserved]
Sec. 601.23 The Environmental Impact Statement process.
(a) The NCPC shall involve the applicant, Federal and District of
Columbia agencies, members of the public and stakeholders in the
preparation of an EIS. Public participation shall be required as part
of the Public Scoping process and review of the Draft EIS. The NCPC
shall also consult with agencies having jurisdiction by law or
expertise. Agencies with ``jurisdiction by law'' are those with
ultimate jurisdiction over a project and whose assistance may be
required on certain issues and those with other kinds of regulatory or
advisory authority with respect to the action or its effects on
particular environmental resources.
(b) To determine the scope of an EIS through a Public Scoping
process, NCPC shall proceed as follows:
(1) Disseminate a NOI in accordance with 40 CFR 1501.7 and 1506.6.
(2) Publish a NOI in the Federal Register and on NCPC's Web site
which shall begin the Public Scoping process.
(3) Include the date, time, and location of a Public Scoping
meeting in the NOI. The public meeting shall be announced at least
thirty (30) calendar days in advance of its scheduled date.
(4) Hold Public Scoping meeting(s) in facilities that are
accessible to the disabled; include translators if requested in
advance; include signers or interpreters for the hearing impaired if
requested in advance; and allow special arrangements for consultation
with affected Indian tribes or other Native American groups who have
environmental concerns that cannot be shared in a public forum.
(5) Consider all comments received during the announced comment
period regarding the analysis of alternatives, the affected
environment, and identification of potential impacts.
(6) Apply the provisions of this section to a Supplemental EIS if
the Executive Director of NCPC, in his/her sole discretion, determines
a Public Scoping process is required for a Supplemental EIS.
(c) A Draft EIS shall be available to the public for their review
and comment, for a period of generally forty-five (45) calendar days.
The public comment period shall begin when NCPC shares a copy of the
Draft EIS with EPA in anticipation of EPA's publication of an NOA. The
NCPC shall hold at least one public meeting during the public comment
period on a Draft EIS. The public meeting shall be announced at least
thirty (30) calendar days in advance of its scheduled occurrence. The
announcement shall identify the subject of the Draft EIS and include
the public meeting date, time, and location.
Sec. 601.24 Final Environmental Impact Statement.
(a) The NCPC shall prepare a Final EIS following the public comment
period and the public meeting(s) on the Draft EIS. The Final EIS shall
respond to oral and written comments received during the Draft EIS
public comment period.
(b) The Commission shall take final action on an application
following a thirty (30) day Commission-sponsored review period of the
Final EIS. The thirty (30) day period shall start when the EPA
publishes a NOA for the Final EIS in the Federal Register.
Sec. 601.25 Record of Decision.
(a) If NCPC is the Lead Agency and decides to recommend approval of
a proposed action covered by an EIS, it shall prepare and sign a ROD
stating the Commission's decision and any Mitigation measures required
by the Commission.
(1) The ROD shall include among others:
(i) A statement of the decision.
(ii) The identification of alternatives considered in reaching a
decision specifying the alternatives that were considered to be
environmentally
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preferable. The ROD shall discuss preferences among alternatives based
on relevant factors including economic and technical planning
considerations and the Commission's statutory mission. The ROD shall
identify those factors balanced to reach a decision and the influence
of various factors on the decision.
(iii) A statement as to whether all practicable means to avoid or
minimize environmental harm from the alternative selected has been
adopted, and if not, why they are not.
(iv) A monitoring and enforcement program that summarizes
Mitigation measures.
(v) Date of issuance.
(vi) Signature of the Chairman.
(2) The contents of the draft ROD proposed for Commission adoption
shall be summarized in the EDR and a full version of the draft document
shall be included as an Appendix to the EDR. The Draft ROD,
independently of the EDR, shall be made available to the public for
review fourteen (14) calendar days prior to the Commission's
consideration of the proposed action for which the EIS was prepared.
(3) The Commission shall arrive at its decision about the proposed
action for which NCPC serves as the Lead Agency and its environmental
effects in a public meeting of record as identified by the Commission's
monthly agenda.
(b) If NCPC is not the Lead Agency, following the Commission final
approval of a project to which a ROD pertains, and consistent with the
Federal Agency's NEPA regulations, NCPC may take one of the following
actions. It may either co-sign the Lead Agency's ROD following
Commission approval of the project if NCPC agrees with its contents and
conclusions or it shall prepare, sign, and sign and adopt its own ROD
in accordance with the requirements of paragraphs (a)(1) through (3) of
this section.
(c) If the Commission determines a Lead Agency's EIS fails to
support a ROD, the Lead Agency shall revise its EIS, or, alternatively,
the Commission shall not approve or give any further consideration to
underlying application.
Sec. 601.26 Supplemental Environmental Impact Statement.
(a) The NCPC shall prepare a supplemental EIS if five or more years
has elapsed since adoption of the EIS and:
(1) There are substantial changes to the proposed action that are
relevant to environmental concerns; or
(2) There are significant new circumstances or information that are
relevant to environmental concerns and have a bearing on the proposed
action or its impacts.
(b) The NCPC may supplement a Draft or Final EIS at any time, to
further the purposes of NEPA.
(c) The NCPC shall prepare, circulate, and file a supplement to a
Draft or Final EIS in in accordance with the requirements of Sec. Sec.
601.22 through 601.24 except that Public Scoping is optional for a
supplemental EIS.
(d) The NCPC shall prepare a ROD for a Supplemental EIS. The ROD's
contents, the procedure for public review, and the manner in which it
shall be adopted shall be as set forth in Sec. 601.25.
Sec. 601.27 Legislative Environmental Impact Statement.
(a) Consistent with 40 CFR1506.8, the Executive Director shall
prepare an EIS for draft legislation initiated by NCPC for submission
to Congress. The EIS for the proposed legislation shall be included as
part of the formal transmittal of NCPC's legislative proposal to
Congress.
(b) The requirements of this section shall not apply to legislation
Congress directs NCPC to prepare.
Subpart G--Dispute Resolution
Sec. 601.28 Dispute resolution.
Any disputes arising under this part, shall be resolved, unless
otherwise otherwise provided by law or regulation by the parties
through interagency, good faith negotiations starting at the working
levels of each agency, and if necessary, by elevating such disputes
within the respective Agencies. If resolution at higher levels is
unsuccessful, the parties may participate in mediation.
Sec. 601.29 [Reserved]
Dated: September 21, 2017.
Anne R. Schuyler,
General Counsel.
[FR Doc. 2017-20614 Filed 9-28-17; 8:45 am]
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