Attachment_XI_DHS_Management_Directive_023-01.pdf

Department of Homeland Security DHS Directives System

Directive Number: 023-01 Revision Number: 00

Approval Date: 04/19/2006 Formerly ENVIRONMENTAL PLANNING Management PROGRAM Directive 5100.1

I. Purpose A. This Management Directive (MD) establishes policy and procedures to ensure the integration of environmental considerations into Department of Homeland Security (DHS) mission planning and project decision making.

Environmental stewardship, homeland security, and economic prosperity are compatible and complementary. This MD establishes a framework for the balanced and systematic consideration of these factors in the planning and execution of DHS activities.

B. This MD establishes procedures that DHS will use to comply with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4335) and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508). NEPA is the basic charter and foundation for stewardship of environmental resources in the United States. It establishes policy, sets goals, and provides a tool for carrying out federal environmental policy. NEPA requires federal agencies to use all practicable means within their authority and consistent with other essential considerations of national policy, to create and maintain conditions under which people and nature can exist in productive harmony and fulfill the social, economic, and other needs of present and future generations of Americans.

C. This MD provides the means for DHS to follow the letter and spirit of NEPA and comply fully with CEQ regulations. This MD adopts and supplements CEQ regulations, and is to be used in conjunction with them. This MD encompasses other requirements and establishes the DHS Environmental Planning Program.

II. Scope A. Substantive or procedural requirements in this MD apply to DHS Components as described herein and are to be used in program planning and project development. This MD applies to any discretionary DHS action with the potential to affect the quality of the environment of the United States, its territories, or its possessions. It also addresses those DHS actions having effects outside the United States, its territories, or its possessions under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions. More specifically, this MD applies to:

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Revision # 00

1. DHS mission and operations planning

2. Promulgation of regulations

3. Acquisitions and procurements

4. Asset management

5. Research and development

6. Grants programs

B. This MD supplements CEQ regulation for implementing NEPA. In the case of any apparent discrepancies between these procedures and the mandatory provisions of CEQ regulations, CEQ regulations will govern.

III. Authorities This MD is governed by numerous Public Laws, Regulations, and Executive Orders, including, but not limited to:

A. Clean Air Act (16 U.S.C. §470 et. seq.)

B. Coastal Zone Management Act (16 U.S.C. §1451 et. seq.)

C. Endangered Species Act (16 U.S.C. §1531 et. seq.)

D. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C.

§4321-4335).

E. Federal Water Pollution Control Act (33 U.S.C. §1251 et. seq.)

F. Marine Mammal Protection Act (16 U.S.C. §1361 et. seq.)

G. Migratory Bird Treaty Act (16 U.S.C. §703-712).

H. National Environmental Policy Act (42 U.S.C. §4321 et. seq.)

I. National Historic Preservation Act (16 U.S.C. §470 et. seq.)

J. National Marine Sanctuaries Act (16 U.S.C. §1431 et. seq.)

K. Title 40 of the Code of Federal Regulations Parts 1500-1508.

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L. Executive Order 11514, Protection and Enhancement of Environmental Quality, dated March 5, 1970, as amended by Executive Order 11991, dated May 24, 1977.

M. Executive Order 11988, Floodplain Management, dated May 24, 1977.

N. Executive Order 11990, Protection of Wetlands, dated May 24, 1977.

O. Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, dated January 4, 1979.

P. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, dated February 11, 1994.

Q. Executive Order 13101, Greening the Government through Waste Prevention, Recycling, and Federal Acquisition, dated September 14, 1998.

R. Executive Order 13123, Greening the Government through Efficient Energy Management, dated June 3, 1999.

S. Executive Order 13148, Greening the Government through Leadership in Environmental Management, dated April 21, 2000.

T. Executive Order 13149, Greening the Government through Federal Fleet and Transportation Efficiency, dated April 21, 2000.

IV. Definitions A. All definitions of words and phrases in 40 CFR Part 1508 apply to this MD.

B. A glossary of words and phrases as used in this MD is included in Appendix B.

V. Responsibilities Responsibility for oversight of DHS NEPA activities, unless otherwise delegated, is as follows:

A. The Secretary of DHS (Secretary) recognizes the long term value of incorporating environmental stewardship into the planning and development of all DHS missions and activities and exercises the ultimate responsibility in the Department to fulfill environmental planning requirements. To this end, the Secretary delegates specific authority for environmental planning to the Heads of the Directorates, service chiefs, and other direct reports. The Secretary delegates to the Under Secretary for Management, as the Departmental Environmental Executive, the authority to establish an Environmental Planning Program and to

- 3 -ensure that environmental planning requirements are functionally integrated into DHS missions. The following objectives are to be used in guiding environmental planning activities in DHS:

1. Timely and effective support

2. Sustainable capability

3. Consistency with national security, fiscal responsibility, and other considerations of national policy

4. Full compliance with all appropriate environmental laws, Executive Orders, regulations, and other requirements, such as environmental management systems (EMS).

B. The DHS Department Environmental Executive (DEE) is the Under Secretary for Management and has authority to fulfill the Secretary’s objectives by ensuring that the Department fully integrates environmental planning requirements into all DHS missions and activities. The DEE recognizes that environmental planning is an important and necessary part of good management practice in the Department.

To this end, the DEE has delegated specific authority for environmental planning to the Chief of Administrative Services, the Director of the Office of Safety and Environmental Programs, and to other DHS officials as set forth in this MD. In exercising the authority delegated from the Secretary, the DEE will:

1. Ensure that Under Secretaries and Designated DHS Officials incorporate environmental planning and stewardship requirements into their mission requirements to fulfill the Secretary’s objectives, the requirements of NEPA, CEQ Regulations, this MD, applicable Executive Orders, and other environmental planning requirements.

2. Support budget requests to meet the requirements of this MD.

3. Consult, as needed, with Under Secretaries and Designated DHS Officials to ensure that they complete appropriate environmental planning for highly sensitive programs or actions that may require the attention of either the Deputy Secretary or the Secretary.

4. Delegate requests for environmental planning-related information received at the Departmental level to the Chief, Administrative Services for action.

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C. The Chief of Administrative Services (CAS) has authority to support the DEE in efforts to promote good management practice by ensuring that environmental planning requirements are functionally integrated into all of DHS missions and activities. To this end, the CAS has delegated authority to establish a reliable and cost effective environmental planning program to the Director, Office of Safety and Environmental Programs. In exercising this authority, the CAS will:

1. Advise the DEE, as needed, on all environmental planning matters in the Department.

2. Establish, as needed, appropriate Department-wide policy, guidance, or training to enable the effective performance of environmental planning throughout DHS.

3. Recommend, as requested by the DEE, appropriate action on budget requests for environmental planning resources from Under Secretaries and Designated DHS Officials.

4. Consult with Under Secretaries and Designated DHS Officials to ensure that their policies and procedures incorporate the requirements of this

MD.

5. Direct, as needed, the performance of environmental planning activities within DHS Components with particular emphasis on highly sensitive programs or actions that may require the attention of the senior executive levels of the Department.

6. Coordinate requests for environmental planning related information received at the Departmental level among appropriate DHS Components or assign the request to the appropriate Components for resolution.

7. Approve new or revised administrative procedures proposed by DHS Components, including the delegation of authority to sign environmental documents pursuant to the recommendations of the Director, Office of Safety and Environmental Programs. Coast Guard, Federal Emergency Management Agency, and Customs and Border Protection, are delegated this authority when this MD goes into effect.

8. Revoke, as appropriate, delegations of authority to a DHS Under Secretary or Designated Official.

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D. The Director, Office of Safety and Environmental Programs (DOSEP) is designated by the Secretary as DHS Environmental Planning Program Manager and is responsible for establishing and directing the Department’s environmental planning program, and ensuring its functional integration into DHS missions. The DOSEP will support the CAS with advice and assistance in carrying out the responsibilities of that office as set forth in the above paragraph. Such advice and assistance will:

1. Advise the CAS, as needed, on all environmental planning matters in the Department.

2. Develop, as needed, policy, guidance, or training to enable the reliable, timely, and cost effective performance of environmental planning throughout the Department to fulfill the Secretary’s objectives and other requirements of this MD.

3. Evaluate for CAS, as requested, budget requests for environmental planning resources.

4. Direct, as needed, the performance of environmental planning activities within DHS Components, with particular emphasis on headquarters level programs or actions and those that have the interest of the CAS.

5. Coordinate and respond to requests for environmental planning related information received at the Departmental level among appropriate DHS Components or assign the request to the appropriate Directorate for resolution.

6. Review environmental documents, public notices, and other related external communications that require a Departmental-level approval prior to release by the Proponent. This includes all draft, final, and supplemental Environmental Impact Statements (EIS) originating in the Department prior to filing with EPA, unless otherwise delegated.

7. Evaluate new or substantively revised supplemental procedures from DHS Components for conformance with this MD. DHS Components’ supplemental procedures will only be recommended to CAS for approval after they are evaluated by DOSEP, meet all necessary CEQ and public review requirements, and incorporate all appropriate comments and revisions.

8. Evaluate new or revised DHS Component procedures for environmental planning requirements promulgated under laws other than NEPA to ensure appropriate consistency with existing policies or procedures and potential for department-wide applicability.

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9. Evaluate requests for delegation of authority from an Under Secretary or a designated DHS Official to sign environmental documents. Such delegation shall only be recommended for approval if the requestor has both approved supplementary procedures and adequate staff resources to fulfill the Secretary’s objectives and the requirements of this MD. The adequacy of staff resources will involve an evaluation of knowledge and experience in fulfilling environmental planning requirements and preparing NEPA analyses and documentation sufficient to meet the Secretary’s objectives. Requests for delegation of authority and supplementary procedures may be evaluated concurrently.

10. Recommend revocation of a delegation of authority from an Under Secretary or a designated DHS Official for inappropriate procedures or inadequate staff resources to ensure full compliance with this MD or other environmental planning requirements.

11. Assist DHS Components, as needed, in reviewing and assessing the environmental impacts of proposed DHS actions covered by Executive Order (E.O.) 12114.

12. Review and comment on EISs and NEPA analyses originating from agencies outside of DHS relating to:

a. Actions with national policy implications relating to DHS missions;

b. Legislation, regulations, and program proposals having a potential national impact on a DHS mission, and,

c. Actions with the potential to encroach upon DHS missions.

13. Coordinate requests from non-Departmental agencies regarding cooperating agency status within DHS, as appropriate.

14. Act as the principal point of contact for DHS on environmental issues brought before CEQ, the Office of Management and Budget, the Advisory Council on Historic Preservation, U.S. Environmental Protection Agency headquarters, and other federal agency headquarters. This includes requests for alternative arrangements to comply with NEPA and CEQ regulations.

15. Perform other functions as are specified in this MD or as are appropriate under NEPA, CEQ regulations, applicable Executive Orders, other requirements concerning environmental matters.

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E. The Office of General Counsel will:

1. Provide legal sufficiency review, when appropriate, for use of categorical exclusions, draft, final, and supplemental Environmental Assessments (EAs), Findings of No Significant Impact (FONSIs), Environmental Impact Statements (EISs), and Records of Decision (RODs).

2. Advise Proponents (as defined in Appendix B, Glossary) in consultation with the Environmental Planning Program Manager (EPPM), whether a Component’s proposed action is subject to the procedural requirements of NEPA.

3. Advise Proponents on compliance with NEPA, CEQ Regulations, applicable Executive Orders, and other environmental planning requirements.

4. Assist in establishing or revising Departmental or Component’s NEPA procedures, including appropriate categorical exclusions (CATEX).

F. All Under Secretaries, Designated DHS Officials, and Heads of Components will:

1. Fully integrate the requirements of this MD into planning for all applicable programs, activities, and operations. Ensure that the planning, development, and execution of all their missions and activities conform to the policy and procedures in this MD.

2. Ensure that DHS Proponents take the lead in environmental planning efforts and maintain an understanding of the potential environmental impacts of their programs and projects.

3. Plan, program, and budget for the requirements of this DM.

4. Support outreach processes for environmental planning.

5. Coordinate with other DHS Components on environmental issues that affect them.

6. Prepare and circulate environmental documents for the consideration of others when an action or policy area in question falls under their jurisdiction as required by 40 CFR Part 1506.9.

7. Request the assistance of DOSEP in preparing the environmental analysis for any actions covered by E.O. 12114, unless otherwise delegated.

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8. Propose to the CAS, for review and approval, new or revised supplemental procedures for the implementation of this DM. All supplemental procedures will be consistent with the National Environmental Policy Act, this MD and the CEQ regulations.

a. Proposals to establish, substantively revise, or delete CATEXs are subject to DOSEP review, CEQ review, public comment, and publication of a final version in the Federal Register before they can be used.

b. For those Under Secretaries and Designated DHS Officials with delegated authority to sign environmental documents, preparation of handbooks and other technical guidance regarding NEPA implementation do not need CAS and CEQ approval.

9. Propose to the CAS any new or revised procedures for environmental planning requirements promulgated pursuant to laws other than NEPA to confirm appropriate consistency with existing department-wide policies or procedures and to evaluate potential applicability to other DHS Components.

Any new or revised procedures must be consistent with existing department-wide policies or procedures.

10. Send all environmental documents and procedures via their respective organizational hierarchy to the DOSEP for review, prior to release to the public, unless otherwise delegated.

11. Components not listed in paragraph 7 may request from the CAS a delegation of authority to sign environmental documents. The request should include documentation demonstrating that the Component has adequate staff resources with knowledge and experience in preparing NEPA analyses and documentation sufficient to ensure full compliance.

12. Ensure that all external communications on environmental planning requirements that are controversial, highly visible, classified, sensitive or related to matters with potential for Department-wide implications are coordinated with the DOSEP and provide DOSEP with a copy of all related formal communications.

13. Respond to requests for copies of environmental documents, reports or other information related to the implementation of NEPA.

14. Designate an appropriate Environmental Planning Program Manager (EPPM) and alternate in their respective Components as a single point of contact for coordination with DOSEP on relevant environmental planning matters.

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G. Environmental Planning Program Managers (EPPMs) will:

1. Act as a single point of contact for DOSEP on all environmental planning matters.

2. Inform key officials within their respective Components of current developments in environmental policy and programs.

3. Coordinate environmental planning strategies for matters within their respective Component’s purview.

4. Act to further their respective Components compliance with the requirements of NEPA, CEQ regulations, this MD, applicable Executive Orders, and other environmental requirements.

5. Identify discretionary activities within their respective Components and ensure that the requirements of this MD are fully integrated into those activities.

6. Work with Proponents in their respective Components, as needed, to fulfill the requirements of this DM and other environmental planning requirements. Consultation with Proponents will, at a minimum, involve the following objectives:

a. Ensure that appropriate environmental planning, including the analyses and documentation required by NEPA, is completed before the Proponent makes a decision that has adverse environmental effects or limits the choices of alternatives to satisfy an objective, fix a problem, or address a weakness.

b. Plan, program, and budget to meet the requirements of this

MD.

c. Support the execution of the requirements of this MD.

d. Ensure that their respective DHS Proponents are cognizant of the potential environmental impacts of their programs and projects.

e. Monitor the preparation and review of environmental planning efforts to ensure compliance with all applicable scheduling, scoping, consultation, circulation, and public involvement requirements.

f. Advocate and develop, as appropriate, agreements with federal, tribal, and state regulatory and/or resource agencies concerning NEPA and other environmental planning requirements.

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g. Coordinate with other DHS Components on environmental issues that affect them.

h. Coordinate with DOSEP in preparing the environmental analysis for any actions covered by E.O. 12114.

7. Propose changes in this MD or their supplementary procedures through the appropriate lines of authority to DOSEP.

8. Support outreach processes for environmental planning.

9. In consultation with the DOSEP, define appropriate environmental training requirements for personnel within their respective Components.

10. Coordinate with DOSEP on environmental issues to be brought before CEQ, the Office of Management and Budget, the Advisory Council on Historic Preservation, U.S. Environmental Protection Agency headquarters, and other federal agency headquarters.

11. Coordinate requests from non-Departmental agencies regarding cooperating agency status with DOSEP.

H. Program or Project Proponents will (in consultation with their respective

EPPM):

1. Ensure that appropriate environmental planning, including the analyses and/or documentation required by NEPA is completed before a decision is made that limits the choices of alternatives to satisfy an objective, fix a problem, address a weakness, or develop a program.

2. Ensure that the program or project has adequate funding and resources to complete appropriate environmental analysis and documentation.

3. Ensure the quality of the analysis and the documentation produced in the environmental planning process.

4. Perform the appropriate outreach and communication with federal, state, tribal, local, and public interests.

5. Ensure that the project budget has sufficient resources to meet all mitigation commitments.

6. Seek technical assistance from the DOSEP, as needed, through the appropriate lines of authority to ensure compliance with NEPA.

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VI. Policy A. Stewardship of the air, land, water, and cultural resources is compatible with and complementary to the planning and execution of the DHS mission.

Environmental planning processes provide a systematic means of evaluating and fulfilling this aspect of DHS responsibility. DHS recognizes that when environmental stewardship responsibilities are not managed effectively, there may be social, financial, and administrative costs, as well as lost opportunities and potential for lower quality mission outcomes. To effectively meet its environmental stewardship responsibilities, DHS will integrate environmental planning requirements into homeland security operational planning, program development, and management methodologies consistent with homeland security requirements, fiscal policies, and other considerations of national policy.

B. DHS Proponents will have the lead role in the environmental planning process. DHS Proponents will be cognizant of the impacts of their decisions on cultural resources, soils, forests, rangelands, water and air quality, fish, and wildlife, and other natural resources in the context of terrestrial and aquatic ecosystems.

DHS Proponents will employ all practical means consistent with other considerations of national policy to minimize or avoid adverse environmental consequences and attain the goals and objectives stated in NEPA.

C. DHS Proponents will provide for adequate staff, funding, and time to integrate environmental planning into DHS missions and to perform appropriate NEPA analysis (in conformance with 40 CFR 1507.2) for programs, plans, policies, projects, regulations, orders, legislation or applications for permits, grants, or licenses. Should mitigation be necessary to reduce the environmental effects of a DHS proposed action, the Proponent will be responsible for providing the costs of mitigation or ensuring that the applicant provides for mitigation.

D. DHS Proponents will integrate the NEPA process with other DHS planning and project decision making activities and other environmental review requirements sufficiently early to:

1. Ensure that mission planning, program development, and project decision making reflect the Secretary’s objectives and the policies in this MD.

2. Ensure that no action moves forward for funding or approval without the systematic and interdisciplinary examination of likely environmental consequences according to the policy and procedures in this MD.

3. Balance environmental concerns with mission requirements, technical requirements, and costs in the decision making processes to ensure long-term sustainability of DHS operations.

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4. Allow for appropriate communication, cooperation, and collaboration between DHS, other government entities, the public, and non-governmental entities as an integral part of the NEPA process.

E. DHS Proponents will emphasize quality analysis of the potential for environmental effects among alternative courses of action to meet mission needs and the development of strategies to minimize those effects. Documentation required under NEPA will present the evaluation of environmental effects and the development of the minimization strategies. The depth of analysis and volume of documentation will be proportionate to the nature and scope of the action, and to the complexity and level of anticipated effects on important environmental resources. Documentation is necessary to present results of the analysis, but the objective is quality analysis to support DHS decisions, not the production of documents.

F. DHS Proponent, in consultation with the EPPM and the Office of General Counsel, will determine the level of NEPA analysis required for the proposed action.

DHS Proponents will complete their NEPA analysis and review for each DHS proposed action before making a final decision on whether to proceed with the proposed action. No action or portion of an action that is the subject of an EA or EIS process will be taken that limits reasonable alternatives, involves a conflict of resource use, or has an adverse environmental effect until the ROD or FONSI has been made public. No actions or portions of an action covered by a CATEX that requires a Record of Environmental Consideration (REC) will be taken until the REC is completed.

G. Laws other than NEPA that require DHS to obtain or confirm the approval of other federal, tribal, state, or local government agencies before taking actions that are subject to NEPA, will be integrated into the NEPA process at the earliest possible stage and to the fullest extent possible. However, compliance with other environmental laws does not relieve the Proponent from completing an environmental planning process, including appropriate compliance with NEPA. In addition, compliance with NEPA does not relieve the Proponent from complying with other environmental requirements.

VII. Procedures A. Appendix A contains specific procedures for the application of environmental planning requirements to DHS consistent with the Secretary’s objectives and the policies in this MD. Appendix A also provides a glossary.

B. A DHS Component with delegation of authority under Section 7 may also propose supplemental procedures for CAS approval. Supplemental procedures specific to a DHS Component will be effective upon approval by CAS.

C. All supplemental procedures must be fully consistent with this MD.

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APPENDIX A

TIMELY AND EFFECTIVE ENVIRONMENTAL PLANNING IN

THE DEPARTMENT OF HOMELAND SECURITY

INTRODUCTION

This Appendix provides guidance for timely and effective environmental planning and includes supplementary instructions for implementing the NEPA process in DHS. The numbers in parentheses signify the relevant citation in CEQ Regulations. DHS and its Components will use NEPA as a strategic planning tool, not as a documentation exercise. DHS is committed to using all of the tools at its disposal to ensure timely and effective environmental planning and implementation of the NEPA process.

1. General Policies and Provisions

Timely and effective environmental planning involves a systematic process to identify and evaluate the potential for significant environmental effects from a proposed DHS action. Proponents of programs and activities within DHS have a major role in this process and are responsible for implementing the policies and provisions set out in this section. This process and the guidance in this MD are designed to focus effort on those types of actions with the most potential for significant environmental effects. The process involves three levels of evaluation effort as shown in Figure 1: categorical exclusion, environmental assessment, and environmental impact statement. These levels reflect the increasing potential for significant environmental effects. It is expected that the majority of proposed DHS actions will be able to be evaluated through CATEX or environmental assessments. Fewer DHS actions are likely to require an EIS, which is prepared for those proposals with the potential to significantly impact natural resources and the human environment.

A. Up-Front Planning Activities

(1) Continually assess environmental planning in DHS to improve its effectiveness in supporting and enabling departmental missions.

(2) Adapt environmental planning goals and requirements to complement DHS mission requirements.

(3) Fully integrate NEPA and other environmental planning goals and requirements into program planning and decision-making processes and formal direction, as appropriate, at all levels of the DHS organization.

(4) Ensure that environmental planning staffs are located within the DHS organization where they can function as effective members of interdisciplinary planning and project teams.

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Need

Proposal

Yes Exempted by Legislation?

Emergency?

Initial Analytical Approach

No

No

Consult with CAS or CEQ

Significant Environmental

Effects Uncertain

Significant Environmental Effects

Likely to Occur

Proposal Appears to

Qualify

CATEX

EA

EIS

Does the Proposal Have Extraordinary

Circumstances?

No

Yes

Appropriate Public and

Interagency Involvement

Significant Environmental

Effects?

Finding of No Significant Impact

Implementation with Monitoring as Needed

Notice of Intent

Draft EIS

Minimum 45 Day Public Comment Period

Public Meetings if Needed

Final EIS

Public Notice for 30 days

Record of Decision

Public Meeting, if needed

Yes

No

CATEX applies.

Complete REC, if necessary.

Yes

Public Involvement, including Scoping

Yes

Fulfill all other appropriate environmental planning requirements

APPENDIX A

(5) Enable effective environmental planning through appropriate training, education, and interagency support relationships.

Figure 1: The Environmental Planning Process Under NEPA

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B. Ongoing Administration

(1) Ensure that appropriate environmental planning, including the analyses and documentation required by NEPA, is completed before the Proponent makes a decision that limits the choice of alternatives to satisfy an objective, fix a problem, or address a weakness.

(2) Integrate environmental and planning reviews concurrently, rather than sequentially, with the NEPA process.

(3) Use public involvement processes to limit the analysis of issues to those that are important to the decision making at hand.

(4) Share information with and coordinate with other federal, tribal, state, and local agencies early in the planning process and integrate planning responsibilities with other agencies and governments.

(5) Take into account the views of the surrounding community and other interested members of the public during its planning and decision making process.

(6) Offer cooperating agency status, where appropriate, to other federal, tribal, state, and local agencies that have jurisdiction by law or special expertise, which means statutory responsibility, agency mission or related program experience, with respect to environmental issues.

(7) Ensure the scientific integrity of all environmental impact analyses, mitigation requirements, and monitoring requirements.

(8) Make maximum use of programmatic analyses and tiering of environmental planning efforts to provide relevant environmental information at the appropriate program and project decision levels, eliminate repetitive analyses and discussion, ensure proper consideration of cumulative effects, and focus on issues that are important to the decision being made.

(9) In accordance with 40 CFR 1506.3, consider adopting relevant existing environmental impact analyses, or any pertinent parts thereof, whether prepared by DHS or another agency. Adopted environmental impact analyses of others may be revised or supplemented as needed to serve DHS purposes.

(10) Incorporate material by reference to reduce unnecessary paperwork without impeding public review. The referenced material must be reasonably available for public review within the time allowed for comment.

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(11) Update the list of CATEX to ensure that DHS environmental planning resources remain focused on those activities with the most potential for significant effects.

C. Follow Through - Monitoring and Mitigation (40 CFR 1505.3)

(1) Practical mitigation measures (i.e., those that can be reasonably accomplished within the scope of a proposed alternative, to include offsite mitigation) should be identified to address the impacts of the proposed action and alternatives. Any mitigation measures selected by the Proponent will be clearly outlined in the FONSI or ROD and will be included in the proposed budget for the project or made a part of the approved application from external entities.

(2) Use best management practices and existing environmental management systems, to implement a project and monitor the predicted environmental effects. Using adaptive management techniques, adapt the implementation of a project as new information becomes available.

(3) Budget for mitigation. The Proponent will ensure funding to implement mitigation commitments or ensure that external applicants provide for mitigation funding in their proposal prior to approval by DHS.

(4) Implement mitigation. Ensure that all mitigation commitments in the ROD or FONSI are implemented.

(5) Monitor Results. Monitoring of the expected environmental effects from DHS projects, including appropriate indicators of effectiveness, is an integral part of any mitigation system. The Proponent is responsible for ensuring monitoring during mitigation, where necessary, to ensure that the final decision justified in the ROD or FONSI is implemented. For external applicants, the Proponent is responsible for ensuring that the applicant provides for monitoring. The Proponent is responsible for responding to inquiries from the public or other agencies regarding the status of mitigation measures adopted in the NEPA process.

D. Dispute Resolution

(1) The DHS Dispute Resolution Process

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(a) During the environmental planning process, a DHS Proponent and another federal agency may not agree on significant issues or aspects of the process. DHS policy is to seek to resolve these disputes at the lowest organizational level possible.

However, there are occasions when disputes cannot be resolved at this level. Figure 2 provides a diagram of the full dispute resolution process within DHS. Alternative Dispute Resolution, using the Institute for Environmental Conflict Resolution (a federal agency based in Tucson, Arizona) or another mediation service, is an option that may be used at any stage of this dispute resolution process for more significant disputes.

(b) When significant disputes arise, it is important to maintain a record of the positions and interests of all of the disputing parties, as well as the eventual resolution of the dispute. The Proponent will provide the other federal agency with written notification, using certified mail or a comparable method, detailing the nature of the disagreement. The Proponent will attempt to resolve the dispute within 30 (thirty) working days of notification.

(c) If dispute negotiations fail, the Proponent must notify the other federal agency in writing that an agreement is unlikely and provide a copy to the headquarters of the respective DHS Component (where the Component does not have a separate headquarters, then the notification must go to the Proponent’s program office within their respective Assistant Secretary’s staff).

From the date of that letter, the headquarters of the DHS Component will initiate 30 (thirty) additional working days of negotiations.

(d) If after 30 (thirty) working days, the headquarters of the DHS Component has not resolved the issue, it will be forwarded to the DEE. The DEE may appoint a negotiating team and/or seek Council on Environmental Quality (CEQ) support in resolving the issue.

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(2) The CEQ Referral Process (40 CFR Part 1504)

The CEQ referral process is available when an agency is of the opinion that there are unacceptable environmental effects associated with another agency’s proposed actions. Upon receipt of information that another federal agency intends to refer a DHS matter to CEQ, the DHS lead Component will immediately notify and consult with the DOSEP to notify the DEE and determine how to proceed. In those instances where a DHS Component is of the opinion that another agency’s proposed action that is being analyzed in an EIS will result in unacceptable environmental effects, the Component should elevate the matter to the DOSEP and DEE at the earliest possible time to determine how to proceed in accordance with 40

CFR 1504.

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Figure 2: Dispute Resolution Flowchart

DHS Office of The component HQ forwards the dispute to DHS Office of Safety and Environmental Programs (OSEP). OSEP may Safety and assemble a negotiating team and/or contact the Council on

Environmental Quality for additional support in resolving the Environmental dispute.

Programs

NO

Component Headquarters Yes

Has the disagreement been resolved?

The NEPA process continues

The component HQ and the other federal agency attempt to resolve the dispute. 30 Working Days

The Proponent notifies the other federal agency and their component HQ in writing that an agreement is unlikely.

NO

Yes

Has the disagreement been resolved?

Proponent

The Proponent and the other federal agency attempt to resolve the dispute.

30 Working Days

The Proponent notifies other federal agency in writing, detailing the disagreement.

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2. Intergovernmental Collaboration and Public Involvement

A. Purpose

(1) Open communication, consistent with other federal requirements, is DHS policy. The purpose of this policy is to build trust between DHS and the communities it serves. Other organizations and citizens play an important role in protection of resources and their communities.

Collaboration with other federal, tribal, state, and local agencies, as well as non-governmental organizations (NGOs) and the general public is an effective means to identify important issues to be considered in the environmental planning process. In many cases, these parties have expertise not available in DHS or they may have authorities and obligations to protect specific resources or to approve or fund all or a part of the proposal. Knowing these issues early in the environmental planning process enables a focused effort on issues that are of most interest to the public and importance to the relevant DHS decision.

(2) Collaboration, through meaningful and regular dialogue with those outside of DHS, can serve to avoid conflicts and facilitate resolution when conflicts occur. Awareness and consideration of the needs and requirements of other organizations and the general public, consistent with mission requirements, will enhance the effectiveness of DHS missions.

APPENDIX A

B. Coordination with Other Government Agencies, Tribes, States, and the General Public

DHS policy is to seek out and coordinate with other federal departments and agencies, tribal, state, and local governments, non-governmental organizations, and the general public early in all appropriate aspects of environmental planning, especially in an environmental impact analysis process. In many cases, these organizations have expertise not available in DHS or they may have authorities and obligations to protect specific resources.

(1) When DHS is the lead agency for an environmental planning effort, it is responsible for the scope of the NEPA analysis and the use of processes to coordinate with other government agencies, tribes, states, and the general public to assist in defining that scope.

(2) When another agency has expertise to analyze the potential environmental effect of a DHS proposal, the Proponent will coordinate with it early to ensure high quality and complete analysis.

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(3) DHS will coordinate draft environmental impact analyses with appropriate federal, tribal, and state governments, as well as other interested parties.

(4) Among the various Federal agencies that can be involved in an environmental planning effort, EPA has a special role. Section 309 of the Clean Air Act provides the EPA Administrator with authority to, among other things, review and comment in writing on the environmental impact of any matter relating to the environment contained in any authorized federal projects for construction and any major federal agency action for which NEPA applies. At a minimum, DHS Proponents must ensure that their EISs are appropriately coordinated with the EPA.

(5) Proponents will make special effort to coordinate with affected tribes. In particular, Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” directs all federal departments to, among other things, “strengthen the United States government-to-government relationships with Indian tribes and establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications…”

(6) Obtaining the views of the surrounding community and other interested parties during planning and decision making processes helps proponents to focus the analysis to issues that are important to the public or the decision making at hand and set the boundaries of the environmental evaluation. Public involvement is a process that starts early and continues throughout the planning and early stages of conducting a NEPA analysis.

(7) Scoping (40 CFR 1501.7) is a term for the process of coordination with other government agencies, tribes, states, and the general public that is required for EISs. DHS strongly encourages the use of a process like scoping for EAs.

C. Lead Agencies (40 CFR 1501.5)

The lead agency in an environmental planning process has the responsibility to define the scope and substance of the environmental planning effort.

(1) DHS will be the lead agency when a proposed action is clearly within the province of DHS authority. Likewise, an Under Secretary or designated DHS Official will seek to form a joint-lead relationship, when another agency has initiated an action within the province of DHS authority or has a significant responsibility regarding the action.

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(2) Unless otherwise delegated, the CAS will designate a Component within DHS to be the lead agency when more than one Component could be involved. As necessary, the CAS will represent the Department in consultations with CEQ or other federal entities in the resolution of lead-agency determinations.

(3) To eliminate duplication with state and local procedures, a non-federal agency may be designated as a joint lead agency when a Component has a duty to comply with state or local requirements that are comparable to the NEPA requirements.

D. Cooperating Agencies (40 CFR 1501.6 and 1508.5)

DHS Components are encouraged to use the cooperating agency process.

Other federal, tribal, or state agencies may share a role in the environmental planning associated with programs or projects in DHS missions. These agencies often have specialized expertise or authority in environmental planning requirements that can benefit DHS mission planning. Where another federal, tribal, or state government agency has jurisdiction by law or special expertise with respect to environmental issues, the DHS Proponent should encourage the agency to be a cooperating agency pursuant to 40 CFR 1501.6 and 1508.5.

Any federal agency with jurisdiction by law must be a cooperating agency, if requested by the lead agency. Any federal agency with special expertise with respect to environmental issues in an environmental impact analysis may also be a cooperating agency, by agreement. Any tribal, state, or local government entity with jurisdiction by law or special expertise on any environmental issue may also be a cooperating agency, by agreement.

CAS, as needed, will coordinate requests from non-Departmental agencies in determining cooperating agency status within DHS.

E. Public Involvement (40 CFR 1506.6)

Open communication with the American public in the environmental planning process, consistent with other federal requirements, is DHS policy. Public involvement in the environmental planning process helps produce better decisions. Other public organizations, NGOs, and citizens play an important role in the protection of resources. DHS encourages early and open public involvement in environmental planning processes.

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(1) Environmental Assessments. The Proponent will involve other agencies, applicants, and the public in the environmental impact evaluation process leading to the preparation of an EA, to the extent practicable (to the extent that it can be done). The Proponent has discretion under 40 CFR 1501.4 (b) and 1506.6(a) regarding the type and level of public involvement and the length of any public comment period in EA preparation. Section 4C describes the public involvement policy for an EA in greater detail. The following factors are to be weighed in determining the nature of the public involvement effort and the length of the public comment period in EA preparation.

(a) Magnitude of the proposed project/action and impacts.

(b) Extent of anticipated public interest, based on experience with similar proposals.

(c) Urgency of the proposal.

(d) National security classification.

(e) The presence of minority or economically-disadvantaged populations that may be impacted.

(f) Nature of the environmental impact evaluation; for example a determination of conformity with a state air quality implementation plan may require public review.

The guidance under the following section for EISs (section 2F(2)) should also be considered when preparing an environmental assessment.

(2) Environmental Impact Statements. CEQ regulations mandate specific public-involvement steps in the EIS. Component’s will:

(a) Provide for appropriate public involvement. Public involvement must begin early in the proposal development stage, and during preparation of an EIS. The involvement of other federal agencies and state, local, and tribal governments with jurisdiction or special expertise with respect to environmental issues, as well as the general public, is an integral part of impact analysis, and provides information and conclusions for incorporation into an EIS.

Information obtained from public involvement efforts can help to focus environmental analysis effort on the impacts with the most potential for significance. A public meeting may be appropriate.

The need for a formal public hearing should be determined in accordance with the criteria set forth in 40 CFR Part 1506.6(c).

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(b) Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents.

The notice should be provided by effective and efficient means most likely to inform those persons and agencies that may be interested or affected, including minority populations and low-income populations. Special effort should be made to identify and perform outreach to affected minority populations and low-income populations. Public notices for NEPA activities involving proposals that are controversial, likely to receive Congressional or high-level executive branch attention, likely to gain nationwide attention, have DHS wide effects, or involve classified or sensitive issues should be cleared with the Departmental Environmental Executive (DEE) prior to publication.

(c) Tailor the methods to reach the audience of concern.

Make every effort to make materials available and accessible to affected or interested populations. Special outreach efforts may be needed to reach affected tribes and minority populations and low-income populations. Translation may be required to reach limited- English speakers. Additionally, Components are encouraged to use electronic means to provide access to and distribution of environmental planning information and NEPA documents.

F. Review of Other Agencies’ Analyses and Documents

(1) DHS Components should review and comment on other agencies’ environmental analyses and documents when the proposed action may impact DHS missions, operations, or facilities.

(2) Comments should be confined to matters within the jurisdiction or expertise of the Department; such as security, immigration, or enforcement.

(3) If a DHS Component intends to issue formal adverse comments on a non-DHS agency’s analysis or document, the matter should be coordinated with DOSEP prior to issuing the comments.

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3. Categorical Exclusions (40 CFR 1507.3(b) (2) (ii))

A. Purpose

(1) CEQ regulations (40 CFR 1508.4) provide for federal agencies to establish categories of actions that based on experience do not individually or cumulatively have a significant impact on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). These CATEXs allow DHS Components to avoid unnecessary efforts and paperwork and concentrate their resources on those proposed actions having real potential for environmental concerns.

(2) Components may otherwise decide to prepare environmental assessments for the reasons stated in CEQ regulations (1508.9) even though it is not required to do so.

(3) All requests to establish, substantively revise or delete CATEXs (together with justification) will be forwarded through the Component to the DOSEP for approval. Upon DOSEP approval, proposals to delete, modify, or establish new CATEXs will be subject to both CEQ review and public comment before they will be available for use.

B. Conditions and Extraordinary Circumstances (40 CFR 1508.4)

For an action to be categorically…