Environmental Review Of
Construction Grants Projects
Under 205 (g)
Project Officer
Robert E. Mendoza
Project Managers
Kenneth H. Wood
Roger F. Duwart
Environmental Evaluation Section
U.S. Environmental Protection Agency, Region I
John F. Kennedy Federal Building
Boston, Massachusetts 02203
November 1983
fiu EPA
DcmrtM i Prepared «x Metcalf & Eddy
riC«^JI^^r« I US Environments!ProtectionAgjoncyRo^lonI
EnvtrofimontsI Evstustloft Section
Under Contract No 68-04-1009
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TABLE OF CONTENTS
Chapter Page
1 Introduction 1-1
2 National Environmental Policy Act/Council
on Environmental Quality Regulations!
EPA Implementing Procedures 2-1
3 Clean Air Act 3—1
4 Coastal Zone Management Act 4—1
5 Coastal Barrier Resources Act 5—i
6 Endangered Species Act 6—1
7 Fish and Wildlife Coordination Act 7-1
8 Wetlands and Floodpiains Protection Procedures 8—1
9 Section 404 of Clean Water Act and
Section 10 of Rivers and Harbor Act 9-1
10 National Historic Preservation Act 10-1
11 National Registry of Natural Landmarks 11—1
12 Wild and Scenic Rivers Act 12—1
13 Farmland Protection Policy Act 13—1
14 Regional Groundwater Review Procedures 14—1
15 Direct and Indirect Impacts 15—1
16 Financial Capability Requirements 16-1
17 Public Participation Requirements 17—i
Appendix A Environmental Assessment Format A-i
Appendix B Common Weaknesses in Environmental
Assessments B—i
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LISP OF FIGURES
Figure Page
2.1 NEPA/CEQ/EPA — Step 3 Grant - 205(g) Review 2—5
2.2 NEPA/CEQ/EPA - Step 2+3 Grant - 205(g) Review 2-7
3.1 Clean Air Act — 205(g) Review 3—5
4.1 Coastal zone Management Act — 205(g) Review 4—3
5.1 Coastal Barrier Resources Act — 205(g) Review 5—5
6.1 Endangered Species Act — 205(g) Review 6—5
7.1 Fish and Wildlife Coordination
Act — 205(g) Review 7—3
8.1 Wetlands and Floodplains Protection —
205(g) Review 8—3
9.1 Section 404/Section 10 — 205(g) Review 9—5
10.1 National Historic preservation Act —
205(g) Review 10—5
12.1 Wild and Scenic Rivers Act — 205(g) Review 12—5
13.1 Farmland Protection Policy Act — 205(g) Review 13—5
14.1 Regional Groundwater Review procedures —
205(g) Review 14—3
17.1 Public Participation Requirements —
205(g) Review 17—5
11
November 1983
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Introduction
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INTRODUCTION
Section 205(g) of the Clean Water Act provides funds to the
States for administration of delegated construction grants
activities. These delegated activities include many aspects of
the environmental review process for approval of proposed
projects.
Region I of the U.S. Environmental Protection Agency first
published a manual on this subject in July of 1980, entitled
“Environmental Review under 205(g)”. It was widely regarded as a
very useful tool, providing a succinct overview of the Federal
environmental statutes, regulations, guidelines and policies
which affect the construction grants program of the Clean Water
Act. Since 1980, significant amendments have been made to
sections of the Clean Water Act and to EPA regulations and
policies which govern the construction grants program. These
amendments, along with amendments to other related environmental
legislation, have prompted the production of this revised manual.
The seventeen chapters presented are intended to aid the states
in Region I in meeting the Federal legal and procedural
requirements for environmental reviews under the 205 g)
delegation process. While EPA recognizes that each state has
laws, regulations and policies which also have a bearing on the
environmental review process, the emphasis of this manual is
necessarily on the Federal perspective.
The major changes which this revised manual address are those
resulting from the Clean Water Act Amendments of 1981. These
amendments essentially remove EPA from active participation in
the facilities planning, and sometimes design, process. Thus, in
many cases, compliance with the National Environmental Policy Act
(NEPA) is no longer required prior to the initiation of design
since there is no Federal involvement until construction.
Chapter 2, the focal point of this manual, describes the revised
NEPA review procedures. The subsequent chapters have been
coordinated, to the extent permissible, with the framework
presented by these procedures. Several chapters in this manual
are significantly different from the earlier edition. These deal
with two new Federal laws, the Coastal Barrier Resources Act and
the Farmland Protection Policy Act; a new EPA initiative,
financial capability; and a formerly unwritten Region I “policy”,
groundwater review procedures. A list of State and Federal
offices which may be contacted to answer specific questions
regarding these procedures is included at the end of each
chapter. Also included in each chapter is a list of references
pertaining to the chapter subject.
November 1983 1—1
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EPA and each state have learned through experience that
comprehensive and open planning is the most certain way to obtain
successful wastewater management projects. Such planning can
only be achieved when it is supplemented by a high quality
environmental review effort which is encouraged and implemented
by all levels of government. We hope that the states will find
this manual useful and will continue to work with us to achieve
this goal.
1-2 November 1983
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N EPA/CEO/EPA
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NATIONAL JVIRONKENTAL POLICY ACT
COUNCIL ON VIRONMENTAL QUALITY REGULATIONS
EPA IMPL 1 ITING PROCEDURES
2.0 LEGISLATIVE/REGULATORY FRAMEWORK
The National Environmental Policy Act of 1969 (NEPA)
established the basic tenet that “environmental amen-
ities and values.., be given appropriate consideration
in decision—making, along with economic and technical
considerations” and set up the Environmental Impact
Statement (EIS) as a means of accomplishing this. The
Council on Environmental Quality (CEQ) was established
by the Act to oversee its implementation through moni-
toring and continuing policy development.
CEQ originally issued guidelines in 1970 and in 1973 for
preparation of Environmental Impact Statements. In
1978, CEQ replaced the guidelines with formal regula—
tions which were intended to provide more uniform pro-
cedures among agencies and to better achieve NEPA’s
goals. CEQ’s “National Environmental Policy Act Imple-
mentation of Procedural Provisions; Final Regulations”
[ 40 CFR 1500—1508] were issued November 29, 1978.
These regulations are binding on all Federal agencies.
They provide uniform standards for conducting environ--
mental reviews, and they establish formal guidance for
use by the courts in interpreting NEPA.
Section 1507.3 requires each Federal agency to adopt
procedures to implement NEPA in accordance wtih the CEQ
regulations. Accordingly, on November 6, 1979, EPA pub—
lished “Implementation of Procedures on the National
Environmental Policy Act” [ 40 CFR 6] . On March 8, 1982,
EPA published an interim final amendment to these regul-
ations to include procedures for granting categorical
exclusions from the substantive environmental review
requirements.
Subpart E of the EPA regulations [ Sections 6.500 —
6.510] sets forth the environmental review procedures
for the,Wastewater Treatment Construction Grants Program
which was established under the Clean Water Act.
The basic elements include preparation of an Environ-
mental Information Document (EID) by the Grantee, review
of the EID by State and Federal officials, and a finding
by EPA that the project will have no significant adverse
impacts (FNSI) or that an Environmental Impact Statement
is required.
November 1983 21
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Under the 1979/1982 procedures, the majority of the
environmental analysis and review prescribed by
Subpart E occurred during the Step 1 planning phase,
before the award of the Step 2 design grant. Except for
the categorical exclusion provisions, these are the
procedures that were described in the 1980 edition of
this Manual.
On December 29, 1981, the Clean Water Act was amended by
PL 97—117. Among other changes, this amendment
eliminated Federal grants “for the purpose of providing
assistance solely for facility plans, or plans,
specifications, and estimates for any proposed project
for the construction of treatment works.” Exceptions
for Step 2 design grants are made for communities where
the population is 25,000 or less and the Step 3 building
cost is $8 million or less.
On May 12, 1982, EPA published interim final regulations
[ 40 CFR 35] to implement the revisions to the
Construction Grants Program. The Step 3 (or 2+3) grant
applicant must still meet the environmental requirements
of NEPA; however, elimination of Step 1 planning and
Step 2 design grants effectively eliminates direct
Federal involvement in the facilities planning and
design phases of wastewater treatment works projects.
This means that EPA’S 1979/82 environmental review
procedures as set forth in Subpart E are no longer
appropriate for projects which did not receive Step 1
grant assistance on or before December 29, 1981.
On January 7, 1983, EPA published a proposed amendment
to 40 CFR 6 Subpart E, “National Environmental Policy
Act; Environmental Review procedures for the Wastewater
Treatment Construction Grants Program, Proposed Rule”
(see Attachment 2—1). This document provides for
procedural and minor substantive amendments to the
environmental review procedures to accommodate the
changes in the construction grants program. It is these
procedures which serve as the basis for the environment-
al review process described in this Manual.
2 • 1 INCORPORATING OTHER 4VIRONP4ENTAL REVIEW REQUI REM TS
While NEPA is very broad and general, and mandates
consideration of all the components of overall
environmental well—being, there are a number of other
laws and policies, both pre— and post-dating NEPA, which
promote the protection of specific environmental
2—2 November 1983
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resources. These laws affect Federal decision—making
under their own independent authority and must be
complied with regardless of NEPA. The procedures
required under these acts, however, can often be
efficiently absorbed into the NEPA process whenever NEPA
compliance is required.
For example, if an endangered species is to be affected
by a Federally—funded project, the Endangered Species
Act requires that funding agency to follow specific
procedures, including preparation of a biological
assessment, in order to comply with the law. At the
same time, under NEPA, the presence of the endangered
species is a significant feature of the existing
environment, and impacts to that species should be
weighed by the agency in its decision—making process.
Identifying the presence of the species in the area and
predicting the project’s impact on it is, therefore, a
necessary task under both acts. However, the actual
task need only be done once if the agency’s staff is
aware of all applicable environmental laws and can
coordinate all the requirements during the environmental
review process.
EPA’S and CEQ’s regulations recognize an agency’s
responsibilities to carry out these additional
procedures and require that the responsible official
integrate the procedures into the NEPA review to
greatest extent practical.
EPA’S November 1979 Procedures, Subpart C, identify
these independent authority provisions and describe
their central requirements. Subsequent chapters of this
Manual are devoted to discussing these requirements in
more detail.
2.2 VIROPO1ENTAL REVIEW PROCEDURES UNDER 205(g)
The environmental review process for projects that were
funded as of December 29, 1981 remains substantially the
same as the process which was described in the 1980
edition of this manual. The procedures described in the
following paragraphs are the new procedures proposed in
the January 7, 1983 regulations to implement the revised
construction grants program. They apply only to those
projects funded after December 29, 1981.
Although the major elements are similar, the revised
NEPA review process for wastewater construction grants
has two variations depending on whether the Grantee is
eligible for a Step 3 grant or for a Step 2+3 grant.
The major steps for both of these variations are shown
November 1983 2—3
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on Figures 2.1 and 2.2 respectively and are discussed in
detail below. The Step 3 grant review procedure shown
in Figure 2.1 is anticipated to be the more common
variation.
It should be noted that the flow of activities shown in
Figures 2.1 and 2.2 represent the order of actions that
will generally work best for producing a smooth
environmental review process. Some of the steps, such
as determination of project status, are not required to
occur in any specific order. These have been indicated
by dashed lines.
2.2.1 DetermInation of Project Status
The proposed EPA procedures [ 40 CFR 35.2113 and
6.504 (c)J encourage grant applicants to consult with
EPA early in the facilities planning process to deter-
mine the appropriateness of a categorical exclusion, or
of early preparation of a FNSI or an EIS.
This step, while not specifically required by the
regulations, is important for several reasons. First,
EPA is ultimately responsible for ensuring that
environmental issues have been adequately addressed.
EPA can require further studies or preparation of an
Environmental Impact Statement even after all of the
planning and design work has been completed and approved
by the State. Second, Environmental Impact Statements
can take up to two years to prepare. Substantial time
savings can be realized if the need for an EIS can be
identified early in the planning process. This in turn
can minimize escalation of project costs. Finally,
receiving a Categorical Exclusion could relieve the
Grantee from having to prepare an EID or a delegated
state from having to prepare a preliminary EA. Only EPA
can approve the granting of a Categorical Exclusion
since this function, like preparation of an EIS and
issuance of a final EA and FNSI, cannot be delegated.
Initial consultation should take the form of a request
through the State, for a determination of the project’s
environmental status. The State should then review the
request and make a recommendation to EPA for granting of
a Categorical Exclusion or requiring preparation of an
EIS. If neither of these actions is appropriate, the
State should direct the Grantee to prepare an EID.
2—4 November 1983
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2.2.1.1 Categorical Exclusions
Section 6.107 of EPA’S procedures provides that
categories of actions that do not generally have a
significant effect on the human environment may be
exempt from the substantive environmental review
requirements of 40 CFR Part 6. Only EPA can make the
final determination that a Categorical Exclusion is
appropriate. EPA can later revoke its decision if
subsequent evidence indicates that the proposed action
has changed, a serious local or environmental issue
exists, or that Federal, State or local laws may be
violated
Categories of actions generally eligible for a
Categorical Exclusion (6.505(b)] include:
• minor rehabilitation of existing facilities,
• functional replacement of equipment,
• construction of new ancillary facilities,
minor upgrading and expansion of existing treatment
works in sewered communities of less than 10,000
persons (not including extension of new collection
systems), and
actions relating to on—site technologies in unsewered
communities of less than 10,000 persons.
Categories of actions which are ineligible for
Categorical Exclusions [ 6.505 Cc)) include:
actions which may involve serious local or
environmental issues,
• new surface or groundwater discharge,
• substantial increases in disc azge volumes or
pollutant loadings,
• capacity increase to support a 30 percent or greater
population increase,
• actions expected to have a significant effect on the
human environment,
• actions expected to affect sensitive environmental
resources or areas, and
• actions expected to be controversial or non—cost
effective.
November 1983 29
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2.2.1.2 Environmental Impact Statements
Section 6.508 of the proposed rule requires that an EIS
be prepared whenever the project will result in
significant adverse impacts to:
• land use patterns, types or policies,
• wetlands,
• endangered species critical habitat,
• floodplains,
• prime agricultural land,
• lands with recognized scenic, recreational,
archaeological, or historic value,
• neighborhood stability,
• local ambient air quality, noise levels, and water
quality,
• local wildlife habitat, or
• a water body with a challenged water quality
classification.
The section also requires that the Responsible Official
consider preparation of an EIS whenever it is determined
that the project may result in a violation of Federal,
state or local law or requirements imposed for
protection of the environment.
2.2.1.3 Environmental Information Documents
If the project does not qualify for a Categorical
Exclusion and does not automatically require the
preparation of an EIS, then EPA is charged with
preparing an Environmental Assessment (EA) for the
project. In order to provide sufficient background for
preparation of an EA, the EPA procedures require that
the Grantee submit an Environmental Information Document
(EID) as an integral part of the Facilities Plan
[ 6.506 (a)]
2—10 November 1983
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2.2.2 Scoping the EID [ 6.506(a)]
EPA’S procedures require that the EID “be of sufficient
scope to enable the responsible official to prepare an
Environmental Assessment. The State has the initial
responsibility for helping the Grantee determine the
specific environmental issues to be addressed during
preparation of the EID.
The State and the Grantee may consult with EPA during
preparation of the project scope. EPA is charged with
providing this type of assistance, (6.104(a), 6.504(c)]
and for some projects involvement of EPA at this stage
could better facilitate subsequent review.
It is important to note that the EID must address
indirect as well as direct impacts. It should also
address the potential for significant cumulative impacts
due to the passage of time or in conjunction with other
Federal, state, local or private actions (6.506(b),
6.505 Cc) (1) (iv—v)]
Also, as indicated in Section 2.1 of this Chapter, the
project must comply with other Federal laws. In some
instances, such as projects involving historic
properties, applicable procedures must be initiated by
EPA and in other instances, such as projects affecting
endangered species’ critical habitats, substantial study
requirements and review times may be involved.
Considerable time and money may be saved by the Grantee
if these needs are identified early in the project
planning process and can be coordinated with NEPA review
procedures.
2.2.3 Availability for Assistance to Potential Applicants
[ 40 CFR 1501.2(d) and 6.104]
In addition to requesting an initial determination of a
project’s status and assistance in determining the scope
of the FaD, the Grantee is encouraged to consult with
EPA as well as the State for advice and/or assistance
throughout the environmental review process.
CEQ regulations (1501.2(d) ] require that staff be made
available to advise potential applicants of studies or
other information foreseeably required. EPA procedures
[ 6.104] require that such advice be available on a
project—to—project basis.
It is anticipated that the states will be establishing
their own facilities plan review procedures including
specific environmental review points.
November 1983 211
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EPA review and consultation may be especially helpful to
the Grantee at the point where the majority of the EID
has been prepared but the preferred alternative has not
yet been selected.
2.2.4 State Reviev of Completed Facility Plan and RID
[ 40 CFR 6.506 (a)]
The State has the responsibility for review of the
complete Facilities Plan with particular attention to
the adequacy of the EID and whether or not it was used
properly in the development of alternatives and
selection of the preferred alternative. The reviewer
may require correction of inadequacies and submission of
supplementary information required for proper
environmental review before approving the plan and
preparing the preliminary EA. Requests for additional
information must be made in writing to the Grantee.
Once the State has completed its review of the EID, the
Grantee and the State must decide which of several
routes the environmental process should take. The
choices are best understood by reference to the flow
diagrams shown in Figures 2.1 and 2.2.
For a Step 3 grant there are four choices:
1. withhold preparation of a preliminary EA until after
preparation and review of plans and specifications,
2. request a Categorical Exclusion,
3. recommend preparation of an EIS,
4. prepare a preliminary EA and request an early EPA
decision to issue a FNSI.
For a Step 2+3 grant there are three choices:
1. prepare a preliminary EA,
2. request a Categorical Exclusion
3. recommend preparation of an EIS.
In either case, for any particular projec the most
appropriate choice will depend on the project t s
potential to result in negative environmental impacts.
If EPA decides to grant a Categorical Exclusion, then
the Grantee does not have to submit the EID as part of
the Grant Application. If EPA determines that an EIS
2—12 November 1983
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should be prepared, then EPA becomes responsible for
further environmental analysis and review in accordance
with the EIS process.
If, however, one of these two courses is not followed by
the State or is rejected by EPA, then the State must
prepare a preliminary EA and continue to follow the
process described in the remainder of this chapter.
2.2.5 Preparation of Preliminary Environmental Assessment
140 CFR 6.506(b)1
Based on an adequate Facilities Plan, EID, and other
relevant independent data sources, the State should
prepare a preliminary EA using the format described in
Appendix A of this Manual. Care should be taken to
avoid the common weaknesses presented in Appendix B.
2.2.6 Certification of Compliance 140 CFR 35.2042(b)I
Under the delegated construction grants program the
State has the primary responsibility for review of grant
applications before submittal to EPA to ensure that they
are complete as specified in Section 35.2040. For
purposes of EPA’s environmental review, the application
should include the Facilities Plan, an adequate EID, and
a preliminary EA or other data deemed necessary by EPA
to make an BIS determination. This must be accompanied
by a written certification from the State to the
Regional Administrator stating that the applicable
Federal requirements within the scope of authority
delegated to the State have been met.
If the State and Grantee elect to submit the preliminary
EA before design and request early issuance of a FNSI,
the State must still submit a written certification of
compliance with Federal laws when it finally submits the
complete grant application.
2.2.7 EPA Review and Decision [ 40 CFR 6.507, 35.2042(b) (2)J
Once the State has submitted the Facilities Plan, EID,
and preliminary EA, EPA must make an independent review
of the available information and the preliminary EA and
determine whether an EIS should be prepared. This
action is the Federal agency’s legal responsibility and
cannot be delegated. In making Its determination, EPA
shall apply the criteria In Section 6.508 for initiating
EIS’ s.
November 1983 2—13
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If the State has submitted the complete grant applica-
tion, then the Regional Administrator must approve or
disapprove the grant within 45 days. However, if EPA
identifies deficiencies in any of the environmental
documents, it may request that corrections or additional
information be furnished before the application is
considered complete and the 45 day review period begins.
Where EPA determines that no EIS is necessary, EPA
finalizes the EA and attaches it to a FNSI. The FNSI is
in the form of a cover sheet explaining that EPA has
found that the project does not warrant an EIS. Then
the FNSI/EA are widely distributed. The agency must
then wait 30 days and respond to comments received
during that time before taking action on the grant.
This latter requirement means that EPA actually has only
15 days to make its determination to issue a FNSI.
Because the CEQ regulations require the implementation
of mitigation measures, any mitigation measures outlined
in the FNSI/EA must be followed up by conditioning Step
2+3 and Step 3 grants as necessary and requiring
appropriate specifications in the bid documents.
This requires that the plans and specifications be
reviewed by the State and EPA to ensure that they
accurately reflect the FNSI. In the case of Step 2+3
grants, this review will come after the grant award as
part of EPA’s monitoring responsibilities. In the case
of Step 3 grants, the review of plans and specifications
will take place prior to award of the grant.
If an early FNSI had been issued, any significant
changes in the project could cause EPA or the State to
request additional environmental evaluations and
reviews, and an amended FNSI may have to be issued.
2.2.7 EIS Process [ 40 CFR 1501—1506, 6.105]
Where EPA determines that an EIS is required, the
Environmental Evaluation Section of EPA prepares the
EIS. ElS’s cover the same topic areas as EID’s, but
concentrate on the issues identified by the EID and
examine them in depth (often involving field and
literature research efforts). The EIS process is
designed to allow more extensive public and review
agency involvement than is possible for routine
projects.
The general procedure for preparing EIS’s is discussed
in the CEQ/NEPA Regulations (Sections 1501—1506).
First, a “Notice of Intent,” announcing EPA’S decision
2—14 November 1983
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to prepare an EIS is distributed. Then, a scoping
process is undertaken; review agencies at all levels of
government, special interest groups, and the general
public are all contacted to solicit ideas and input on
what the EIS should try to accomplish. The EIS is then
prepared, often utilizing a special contractor. Several
public workshops are held during its development. After
about a year, a draft EIS is printed and distributed. A
forty—five day comment period follows, during which a
public hearing is held. Then, supplementary material is
developed and revisions are made in the draft material
to respond to questions and criticisms received during
the comment period, and a final EXS, incorporating the
comments and responses, is printed and distributed. A
30—day comment period follows. After this comment
period, the agency makes its final decision on the
project and announces it by distributing a Record of
Decision. This must state which alternative was found
to be environmentally preferrable and, if the agency did
not choose it, the Record of Decision must explain
why. It must also discuss what mitigatio’ has been
adopted and how it will be carried out. The en tre EIS
process takes 1 to 2 years.
2.2.8 Monitoring t40 CFR 6.511]
The implementation of the mitigation measures in
accordance with the grant conditions identified in the
FNSI, the Final EIS or the Record of Decision must b
monitored by EPA even after construction begins. The
Grantee agrees to the conditions in accepting th
grant. Section 6.511 of the EPA Procedures outlines
EPA’S enforcement options should the Grantee not comply
with grant conditions.
2.3 NTACTS
Rogert F. Duwart 6 172233992
NEPA Coordinator
Municipal Facilities Branch
Environmental Protection Agency
Region I
JFK Federal Building
Boston, MA 02203
November 1983 2—15
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2.4 REFERENCES
The National Environmental Policy Act of 1969 , 42 U.s.c.
4321 and subsequent additions.
CEQ “Regulations on Implementing National Environmental
Policy Act Procedures,” Federal Register , 40 CFR 1500,
Vol. 43, November 29, 1978, 55990 and subsequent
additions.
USEPA. “Implementation of procedures on the National
Environmental Policy Act,” Federal Register , 40 CFR 6,
Vol. 44, No. 216, November 6, 1979, 64177—64193.
USEPA. “Implementation of procedures on the National
Environmental Policy Act, Federal Register , 40 CFR 6,
Vol. 47, No. 45, March 8, 1982, 9829—9832.
USEPA, Office of Water Program Operations (WH—547).
Construction Grants 1982 (CG—82) , Interim Final,
Washington, D.C.: 430/9—81—020, July 1982.
USEPA. “Categorical Exclusion from EPA Procedures
Implementing the National Environmental Policy Act,”
Interim Final Rule, 40 CFR 6, Federal Register , Vol. 48,
No. 5, January 7, 1983, 1012—1013.
USEPA. “National Environmental Policy Act; Environ-
mental Review Procedures for the Wastewater Treatment
Construction Grants Program,” Proposed Rule, 40 CFR 6,
Federal Register , Vol. 48, No. 5, January 7, 1983, 1014—
1020.
2—16 November 1983
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1014
Federal Register I Vol. 48, No. 5 I Friday, January 7. 1983/Proposed Rulea
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part B
(FA-FPL 2097—si
National Environmental Policy Act;
Environmental Review Procedures for
the Wastewater Treatment
Construction Grants Program
AGENCY: Envlroiunental Protection
Agency (EPA).
ACT1ON Proposed rule.
SUMMARY: This document provides
procedural and minor substantive
amendments to EPA’s Procedures
Implementing the National
Environmental Policy Act (NEPA) for
the Wastewater Treatment Construction
Grants Program (40 CFR Part 6 Subpart
EJ. The prccedural amendments
accommodate recent changes in EPA’s
regulations for the Construction Grants
Progran (40 CFR Part 35) which have
been modified to incorporate the
MLniclpal Wastewater Treatment
Construction Grants Amendments of
1981 (Pub. L 97—117). The modifications
In the grant program change the process
recipients of EPA grants follow in the
planning and construction of
wastewater treatment facilities. The
minor substantive amendments to
Subpart E streamline the criteria for
preparing en EIS. Further
recommendations for additional
substantive changes wili be proposed In
the near future and will
comprehensively apply to all of 40 CFR
Part 8.
DAiS: Comments on this proposed rule
must be received by February 7, 1983.
ADDRESSES: Comments may be mailed
to the Office of Federal Activities, A-.
104. U.S. Environmental Protection
Agency 401 M Street, SW., Washington,
D C. 20460. Attention: Paul Cahill,
Director.
FOR FURTHER INFORMATION CONTACT
John Gerba, Office of Federal Acthitlea,
(202) 382—5910.
SUPPLEMENTARY INFORMATION:
Classlflcaton
The Office of Federal Activities has
determined that this revision Is not a
“major” rule within the meaning of
Executive Order (E.0.) 12291. This Is
because the revision will not: (1) have
an annual effect on the economy of $100
million or more; (2) cause a major
Increase in costs or prices for
consumers, Individual industries,
geographic regions, or Federal. State, or
local government agencies; or (3) have
significant adverse effects on
competition, employment. luvestlnent,
productivity, innovation. or on the
ability of United States based
enterprises to compete with foreign-
based enterprises In domestic or export
markets.
The purpose and effect of this
amendment to the environmental review
process for the Constmctlon Grants
Program Is to accommodate recent
changes In the grant program end to
make minor substantive changes. No
Increased paperwork burdens are
imposed by the amendments.
This amendment was submitted to the
Office of Management and Budget
(0MB) for review as required by E.O.
12291. Any 0MB comments on Its
reporting or information collection
requirements will be addressed In the
Final Rule.
This amendment Is being published as
a proposed rule to allow for public
comment Comments must be received
by the Office of Federal Activities
(OFA) before February 7. 1983.
R.gulato! Analysis
Under E.0. 12291, EPA must
determine If a regulation Is “major” and
therefore subject to a Regulatory Impact
Analysis. Since EPA believes that this
amendment is not “major”, It Is not
subject to ouch an analysis.
Background
On December 29. 1981 President
Reagan signed the Municipal
Wastewater Treatment Construction
Grants Amendments of 1981 (Pub. L 97-
117). The amendments reflect
Congressional and Administration
objectives to: (1) Reduce the Federal cost
and Involvement in the construction of
municipal wastewater treatment
facilities; (2) streamline the construction
grants process; and (3) to maintain the
environmental integrity of the program.
They also express the Administration’s
policy to delegate the operation of
Federal programs to the appropriate
level of government and to provide both
States and municipalities with more
flexibility In carrying out this
responsibthty. Although the
amendments do not alter EPA’s
responsibility to make NEPA
determinations, they do substantially
affect how NEPA Is applied by
eliminating Step I and Step 2 Federal
grant assistance.
Meeting NEPA Requirements
NEPA reviews have been most
effective when they addressed
environmental Issues during the facility
planning phase. With the elimination of
Step 1 and Step 2 grants, official Federal
Involvement does not occur until after
the completion of facilities planning and
design. This effectively postpones the
“major Federal action” which would
trigger NEPA involvement until much of
the planning and design phases are
completed. The application of NEPA at
this point in the development process
could cause unnecessary waste and
delay If potential Step 3 grantees
propose environmentally unsuitable
alternatives for Federal funding. The
interim final amendments to 40 CFR Part
35 In the May 12, 1982 Federal Register
address this issue by requiring that
NEPA requIrements (40 CFR Part 6) be
met before submission of an application
for a Step 3 (constructIon) grant. More
specifically the regide lions at Section
35.2113 encourages potential applicants
to work with the State and EPA as early
as possible In the fscillty planning
process to “ascertaIn the
appropriateness of a categorical
exclusion, a finding of no significant
Impact, or an environmental Impact
statement,” They also allow a potential
applicant to request a NEPA review
early in the facilities planning or design
stages. The amendments proposed here
reflect this approach.
Categorical Exduslons
On March 8. 1982. an interim final
regulation was printed In the Federal
Register establishing the process for
granting categorical exclusions from
NEPA procedures for certain categories
of wastewater treatment construction
grant projects. This process will likely
exclude 20 percent of the EPA funded
projects from substantive environmental
revIew. The interim final regulation (as
revised by a document published in this
Issue of the Federal Register) will be
combined with the proposed
amendments to Subpart E and together
they will be published as a final
regulation.
Action Being Teken Subpart E
Amendments
EPA Is proposing to amend its
procedures for Implementing the
National Environmental Policy Act
(NEPA) to: (1) Be consistent with the
Municipal Wastewater Treatment
Construction Grant Amendments of 1981
(Pub. 1. 97—117); (2) be consistent with
changes In the Wastewater Treatment
Construction Grants Program’s
regulations (40 CFR Part 35): (3) reorder
the sections of Subpart E to more closely
reflect the sequence of the steps
undertaken in the environmental review
process: and (4) make minor substantive
changes to the criteria for deciding
whether to prepare an EIS. The
proposed amendments also provide that
2—17
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Federal Register I Vol. 48, No. 5 I Friday, January 7. 1983 / Proposed Rules
1015
a decision by the responsible official to
Issue a finding of no significant impact
or to prepare an EIS shall not be subject
to administrative appeal before the EPA
Board of Assistance Appeals. This
provision is intended to reflect a
proposed change in the Agency’s
general grant regulations (40 CFR Part
30) which excludes NEPA
determinations under 40 CFR Part 6 from
the Board’s jurisdiction.
Pro- and Post-December 28,1881 Grants
There are approximately 5,000
wastewater treatment facility planning
projects at venous stages of
development thai received Step I grants
from EPA on or before December 29,
1981. Except as noted in the revised
*6.504(b) and (c). the requirements of
these proposed amendments apply to
those projects and to projects subject to
the Municipal Wastewater Treatment
Construction Grant Amendments of 1981
(projects that did not receive a Step 1
grant on or before December29, 1981).
Although these proposed amendments
include provisions for projects that
received Step I grants on or before
December 29, 1981, they do not
substantively change the environmental
review process for such projects and
thus avoid the imposition of retroactive
requirements.
Reordering and Clarifying of Subpart E
Sec ons
The existing order of the sections and
subsections of Subpart E does not follow
the sequence of the environmental
review process In order to make the
regulation more understandable, the
order of the sections has been revised to
follow the process. Tables provided
below are a guide to the reordering of
the text.
DISTRiBUTION TA8LE—SUBPART E
Gd Sec5on
New Secuon
O S.c8 i
New Section -
• 507(c) e.d (d) v
Ete ii....afliaJ re We
-a
As En Ie..,**l ,peww
6507(e) F S
6.501 (FNSI) dstem*e.
-.—
.
O 507( I), (g) (h)
6509 Enb4. ....,.nt& N SC*
of à7da f, b
Oat.nw s (EIS)—prupira.
ES nwe
Non.
6508 LIMe on d.’- .L..
6514
io Status (raise *)
6509 i 5srtimlXn ci ra.
.stO A. c,d of dudafon
9 1 1Cr mesCass
a
6510 iIi
6511 U &I .9 c0ff1.
•Cr
FR, M&rdi 5. 1982, 0629-02
“FR, ol ml dat ., k4 &.w Sd u .cdoit
Ns a S.daon
011 Sscflon
• 500 Piaposs , - -
6500
6501 O.0d , (1Hfl
8 501(*HI)
6601(9) ——
New
• 502 frew.& fra).
I
t .x
8 503 Osa lsa ci 5 .
mo o s”
8504).) Co g lt o n &.avç
6501 IOo atto’y 5w,.
St. IacBry plwo*ç oc.
h
Is.
• 5Q4 (l ).wd (2),,
8 .501(a) ( itl,tin wI’J
l td Ib). ,
6504(c) --
New
8505 (a) C.h . ,,A. d
6506(c) W*0th,etO,y pwa
more
h (alarm fad)
8505(b)
8 506(cXt) (rsas.d ia,tie
fad)
• 50 5 (e) -—___________
S S08(c)(2) (rwlssd litsitin
tsts0
8505(4) - —
6 .508(cK3) (ittsnni &a )1
8508 (s) mid (b) En*on.
6507(c)
msn w
8506(c) —
6507(d)
6507 F iduIg at No 59*
6 507(e)
caN b Sct 4mw.
riW l aICr
6508 Cittait. flhiwç
6 506(a) (aftwer fatal) arid
ElSa
(ti)
6509 Envwonmertai b Iiac1
Nsa
Stateniert (EIS) p, w,.
xn. (ativ psi
sph)
8509(a)
6 507( f)
6509(b) ..,
6507 (g)
8 509 (c)
6507(h)
6510 RIsord ci dedular
6509
lad rCt teii ci ml.
gst .on mowos
6511 Il iL..n wrçl .
8.510
sac.
8512 proPels
8503 (rswled Sttenm
laid)
8513 PX c pls4ioeon
6604 (atwen fall)
6514 Deisgabonu Status
6508 (latanmflnai )
Minor Substantive Changes
EPA’s Office of Water suggested a
revision to the criteria for preparing an
EIS (* 6.508(a)(1)). The revision removes
examples of land use related criteria
that are currently recommended as a
basis for preparing an EIS. In practice,
these criteria have not been used as a
basis for preparing EJSs and are covered
in other paragraphs of the same section.
The revised language more succinctly
states the land use related
circumstances which require the
preparation of an EIS.
These amendments were developed
by a work group with representatives
from EPA headquarters and regional
offices. Their efforts followed the
extensive public and regional comment
process carried out by the Construction
Grant program in developing
amendments to 40 CFR Part 35 during
which NEPA implementation was
considered
List of Subjects on 40 CFR Part 6
Environmental Impact Statements,
Foreign relations.
Dated: October 27, 1982.
John W. Hemandea,
AcZitt Administrotor
For the reasons set out In the
preamble. 40 CFR Part 8 is proposed to
be amended as follows:
1. The authority citation for Part 8
reads as follows:
Authority: Sections 101. 102. and 103 of the
National Environmental Policy Act of 1969
(42 U.s C. 4321 et seq ). also, the Council on
Environmental Quality Regulations dated
November 29, 1978 (40 CFR Part 1500)
2. The title to 40 CFR Part 6 is revised
to read as follows:
PART 6—PROCEDURES FOR
IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
3. Subpart E Is revfse I to read as
follows:
Subpart E—Envlronmental Review
Procedures for the Wastewater Treatment
Construction Grants Program.
Sec
8500 Purpose
6.501 Definitions
6.502 Applicability and limitations
6503 Overview of the environmental re ie
process
6 504 Consultation during the facility
planning process
6505 Categoncat exclusions
6.506 Environment revlevs process
6.507 Finding of No Significant Impact
(FNSI) determination
6.508 Criteria for inltldtlng Environment2l
impact Statements
6509 Environmental Impact Statement (EIS)
preparation
6510 Record of decision and identification
of mitigation measures
6.511 Monitoring for compliance
8512 Segmenting projects
6513 Public participation
6514 Delegation to States
Note—To facilitate the identification of
proposed changes for the reader, the text of
both proposed Revised and New sections or
paragraphs are enclosed b) arrows (p ’) .4
DISTRIBUTiON TA&E—SUBPART E—Continued Public and Agency partidpation
DERIVATI&4 TABLE—SuaPAIn E
FR MythS 1062 pp 9929—32
‘FR of 64$ date. b4taK Sm lcbon
8500 Pisposes
6501 D&ve e -
8502 Appicatebty (utlertie
faIr)
8503 Cortsitabon sVi
Cia srw wne.4& reutew
prOCeU (Talid Wdenni
faIr)
• 504 Pi 8c pstpp.bon
— fad)
5505 LeMatwia. (litertir
laid)
6506(c) ( twiIr laid) mid
(bi, Crtans r p iepaivig
ElSi
• 50 0(c) Cotaprv a1 w
m
fuiafl
8 507)a) Oa atul ii
- - (r.wlud twmr
fad)
O 507(a) (utterer lalli) mid
(ti) As*’ V a la Me
aaW (55w IL Arid A
8506
6501
Obedete
6512 S.gmentmg pro ts
6 513
Obuciete
8 506 Gttena tw UNostm
Else
8
6
6504 Consultation d)etng
C i a taduty — proc.
2—18
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1016
Federal Register I Vol. 48. No. $ I Friday. January 7, 1983 / Proposed Rules
Subpart E—Envlronmental Review
Procedures for the Wastewater
Treatment Construction Grants
Program
f 6.500 Purposs.
This subpart amplifies the procedures
described in Subparts A through D with
detailed environmental review
procedures for the wastewater
treatment works construction grants
program under Title II of the Clean
Water Act.
f 6.501 DefInitions.
(a) ‘S c p 1 facilities planning”
means preparatic’i of a pan for facilities
as descr’bed in 40 CFR Part 35. Subpart
Eon.
(b) “Step 2’ means preparation of
design drawings and specifications as
described in 40 CFR Part 35, Subpart £
or 1.
(c) “Step 3” means building of a
publicly owned treatment works as
described in 40 CFR Part 35. Subpart E
or I
(d) “Step 2 + 3” means a project
which combines preparation of design
drawings and specifications as
described in f 6501(b), and building as
as described in f 6.501(c)..l
(e) “Applicant”., means any
individual, agency, or entity which has
filed an application for grant assistance
under 40 CFR Part 35, Subpart E or I. ”
(f) “Grantee” ’ means any individual.
agency, or entity which has been
awarded wastewater treatment
construction grant assistance under 40
CFR Part 35. Subpart E or I.e
. .(g) “Responsible official” means the
Federal or State decision maker
authorized to fulfill the requirements of
this subpart. The responsible Federal
official is the EPA Regional
Administrator and the responsible State
official is as defined in a delegation
agreement under § 205(g) of the Clean
Water Act subject to the limitations in
§ 8.514 of this subpart. ‘4
‘1 6.502 ApplicabIlity and limitations.
(a) App/,cability. This Subpart applies
to the following actions:
(1) Projects that received Step 1 grant
assistance on or before December 29,
1081;
(2) Approval of grant assistance for a
project involving Step 3 or Step 2 + 3;
and
(3) Award of grant assistance for a
project where significant change has
occurred in the project or its impact
since compliance with this Part.
(b) Limitations. Recipients of Step I
grant assistance must comply with the
requirements. step., and procedures
described in this Subpart. As specified
in 40 CFR 35.2113. proJects that have not
received Step I grant assistance must
comply with the requirements of this
subpart prior to submission of an
application for Step 3 or Step 2 + 3
grant assistance. ’4
.‘ * 6.503 Ovwv$sw of the invhanmint
rsvIw process.
The process for conducting an
environmental review of wastewater
treatment construction grant projects
Includes several steps whose procedures
are described in subsequent sections of
this subpart. The steps are:
(a) Consultation. The Step 1 grantee or
the potential Step 3 or Step 2 + 3
applicant is encouraged to consult with
EPA early in project formulation or
facilities planning stage to determine
whether a project is eligible for a
categorical exclusion from the remaining
substantive environmental review
requirements of this part ( 8.505) and to
Identify potential environmental Issues.
(b) Determining categorical exclusion
eligibllity.At the request of a potential
Step 3 or Step 2 + 3 grant applicant or a
Step I facilities planning grantee, EPA
determines the eligibility of the project
for a categorical exclusion. A Step 1
facilities planning grantee awarded a
Step I grant on or before December 29.
1981 may request a categorical exclusion
at any time during Step 1 facilIties
planning or Step 2 design work A
potential Step 3 or Step 2 + 3 grant
applicant may request a categorical
exclusion at any time before the
submission of a Step 3 or Step 2 + 3
grant application.
(c) Documenting environmental
information, If the project Is determined
to be ineligible for a categorical
exclusion, the potential Step 3 or Step 2
+ 3 applicant or the Step I grantee
subsequently prepares an
Environmental Information Document
(ED) 3 6.506) for the project
(d) Preparing environmental
assessments. Except as provided in
I 6.508(d113) and following a review of
the Eli) by EPA or by a State with
delegated authority, EPA prepares an
environmental assessment (I 6.506), or a
State with delegated authority (I 6.514]
prepares a preliminary environmental
assessment EPA reviews and finalize.
any preliminary assessments. EPA
subsequently:
(1) prepares and issues a Finding of
No Significant Impact (FNSI); or
(2) prepares and issues an
Environmental Impact Statement (EIS)
3 8.509) and record of decision (I 6.510).
(e) Monitoring. The construction and
post-construction operation and
maintenance of the facilities is
monitored ( 6.511) to ensure the
implementation of mitigation measures
(I 6.510) identified in the FNSI. final EIS
or record of decision.
, .O 6.504 ConsultatIon during the factUty
pIwning process .
(a) General. Consistent with 40 CFR
1501.2, EPA shall Initiate the
environmental review process as early
as possible in order to identify
environmental effects, avoid delays, and
resolve conflicts. The environmental
review process should be integrated
throughout the facilities planning
process (Step 1). Two processes for
consultation are described In this
section to meet this directive. The first
addresses projects which were awarded
Step I grant assistance on or before
December 29. 1981. The second applies
to projects which did not receive grant
assistance for facilities planning on or
before December 29, 1981 and are,
therefore, subject to the regulations
implementing the Municipal Was tewater
Treatment Construction Grant
Amendments of 1981 (40 CFR Part 35
Subpart I).
(b) Projects that received Step 1 grant
assistance on or before December29,
1981. (1) Early in facilities planning, the
grantee should evaluate the likely
project alternatives and the existence of
environmentally sensitive areas in the
facilities planning area, including those
identified in § 6.508 of this Subpart. This
evaluation Is intended to be brief and
concise and should draw on existing
Information from EPA, State agencies.
regional planning agencies, areawide
water quality management agencies.
and the Step 1 grantee. The evaluation
and any additional analysis deemed
necessary may be used by EPA to
d ermine whether the action is eligible
for a categorical exclusion from the
substantive environmental review
requirements of this Part. It is
recommended that the Step 1 grantee
submit the information to EPA or a
delegated State at the earliest possible
time to allow EPA to determine If the
action Is eligible for a categorical
exclusion. If a categorical exclusion is
granted. the grantee will not be required
to prepare a formal Eli) nor will EPA
need to prepare an environmental
assessment If an action has not been
granted a categorical exclusion this
evaluation may be used to determine the
scope of the LID required of the grantee.
It also should be used to make an early
determination of the need for an EIS.
Whenever possible, the Step 1 grantee
should discuss this initial evaluation
with EPA or a delegated State,
whichever is appropriate.
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Federal Register I Vol. 48. No. S / Friday. January 7, 1983 I Proposed Rules
1017
(2) A review of environmental
Information developed by the grantee
should be conducted to the extent
practicable whenever meetings are held
to assess the progress of facilities plan
development. These meetings should be
held after completion of the majority of
the EID document and before a
preferred alternative Is selected. Since
any required EIS must be completed
before the approval of a facility plan for
a project which received a Step 1 grant
on or before December 29, 1981, a
decision whether to prepare an EIS (a
encouraged early during the facilities
planning process. These meetings may
assist In this early determination. EPA
should inform interested parties of the
following:
(i) The preliminary nature of the
Agency’s position on preparing an EIS:
(ii ) The relationship between the
facilities planning and environmental
review processes;
(iii) The desirability of public input:
and
(lv) A contact person for further
Information.
(c) ProjecLs that did not receive grant
assistance for Step I facility planning
on or before December 1981.
Potential Step 3 or Step 2+3 grant
applicants are encouraged to consult
with EPA or the State during the
facilities planning process. In
accordance with 35.2030(c), the
potential applicant should work with the
State and EPA as early as possible In
the facilities planning process to
determine the appropriateness of a
categorical exclusion, the scope of an
EID. or the appropriateness of the early
preparation of a FNSI or an ES. The
consultation wuld be most useful If
Initiated during the evaluation of project
alternatives and prior to the selection of
a preferred alternative. This
consultation may also assist the
potential applicant In resolving any
identified environmental problems...e
.68.505 CategorIc ixthislons.
(a) General. At the request of an
existing Step I facilities planning
grantee or of a potential Step 3 or Step
2+3 grant applicant, the responsible
official, as provided for In 6.107(b) and
* 6.504(a), shall determine from e detlng
Information whether en action Is
consistent with the categories eligible
for exclusion Identifled In * 8.505(b). The
responsible official shah document this
determination as provided for in
I 8.107(b)..4
Ib) Categories of actions eligible for
exclusion. For this subpart, actions
consistent with the following categories
are eligible for a categorical exclusion:
pi(1) Actions for which the facilities
planning Is solely directed toward minor
rehabilitation of existing facilities,
functional replacement of equipment. or
towards the construction of new
ancillary facilities adjacent or
appurtenant to existing facilities which
do not affect the degree of treatment or
capacity of the existing facility. Such
actions Include but are not limited to
Infiltration and Inflow corrections, grant
eligible replacement of existing
mechanical equipment or structures, and
the construction of new small on-site
etructures.
p’ (2)4 Actions in sewered
communities of less than 10.000 persons
which are for minor upgrading and
minor expansion of existing treatment
works. This category does not Include
actions that directly or indirectly
Involve the extension of new collection
systems funded with Federal or other
sources of funds.
p’ (3) . Actions In unsewered
communities of less than 10.000 persons
where onalte technologies are proposed.
p..(4) Other actions developed in
accordance with paragraph (d) of this
section.
(c) Critefiofor not granting a
categorical exclusion. (liThe full
environmental review procedures of this
part must be followed If undertaking an
action consistent with the categories
described in I 6.505(b) may Involve
serious local or environmental Issues, or
meets any of the criteria listed below
(I) The facilities to be provided will
create a new I hRrge to surface or
ground waters;
(ii) The facilities will result to
substantial Increases In the volume of
discharge c i the loading of pollutants
from an existing source or from new
facilities to receiving waters;
(lii) The facilities would provide
capacity to serve a population 30%
greater than the existing population;
(Iv) The action is known or expected
to have a significant effect on the
quality of the human environment, either
individually, cumulatively over time, or
in conjunction with other Federal, State.
local. or private actions;
(v) The action is known or expected to
directly or Indirectly affect sensitive
environmental resources or areas, such
as floodplalns, wetlands, prime or
unique agricultural lands, aquifer
recharge zones, archaeological and
historic sites, endangered or threatened
species. or other areas Identified In
guidance Issued by the OFA or
(vi) The action Is known or expected
not to be cost-effective or to cause
significant public controversy.
p.(2) Notwithstanding the provisions
of I e 05(b), If any of the above
conditions exist, the responsible official
shall ensure:
(I) That a categorical exclusion is not
granted:
(ii) That an adequate EID and
envircrnmental assessment are prepared
(Iii) That either a FNSI or an ES and
record of decision Is prepared and
Issued. . 4
p .(d).4 Developing new categories of
excluded actions. The responsible
official or other Interested parties may
request that a new category of excluded
actions be created, or that an existing
category be amended or deleted The
request shall be made in wrthng to the
Director. OFA and shall contain
adequate Information to support the
request. Under the direction of OFA,
proposed new categories shall be
developed through EPA’s “non-major”
rule-making process (E.O. 12291),
Including publication as an interim final
rule in the Federal Register and a
subsequent thirty (30) day public
comment period. The following shall be
considered in evaluating proposals for
new categories:
p ..(1) Actions In the proposed category
should seldom result In the effects
Identified In * 6.505(c);
(2) Based upon previous
environmental reviews, actions
consistent with the proposed category
have not required the preparation of an
ES; and .4
p. (3)4 Whether Information adequate
to determine if a potential action is
consistent with the proposed category
will normally be available when needed
.18.500 EnvIronmental review process.
(a) Review of completed facilities
plans. EPA. or the State where the
program Is delegated. shall review the
completed facilities plan with particular
attention to the ED and its utilization in
the development of alternatives and the
selection of a preferred alternative An
adequate ED shall be an integral part of
any facilities plan submitted to EPA or
to a State. The ED shall be of sufficient
scope to enable the responsible official
to prepare an environmental
assessment
(b)Environmentol assessment. The
environmental .ssessment shall cover
all potentially significant environmental
Impacts. For those State where the
revIew of facilities plans has been
delegated. State personnel shall prepare
a preliminary environmental assessment
which serves as an adequate basis for
EPA’s decision to issue a FNSI or an
ES. Each of the following subjects shall
be critically reviewed to Identify
potentially significant environmental
2—20
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1018
Federal R*ter I Vol. 48, No. 5 / Friday, January 7, 1083 I Proposed Rules
concerns and shall be addressed In the
environmental assessment.
(1) Description of the existin.g
environmenL For the delineated
facilities planning area, the existing
environmental conditions relevant to the
analysis of alternatives or to
deterinlnating the environmental
Impacts of the proposed action shall be
considered.
(2) Description of the future
environment without the projecL The
relevant future environmental
conditions shall be described. The no
action alternative should be
discussed. .i
(3) Purpose and need. This should
Include a summary discussion and
demonstration of the need for
wastewater treatment In the facilities
planning area, with particular emphasis
on existing public health or water
quality problems and their severity and
extent.
. (4) Documentation. Sources of
Information used to describe the existing
environment and to assess future
environmental Impacts should be clearly
referenced. These sources should
Include regional, State. and Federal
agencies with responsibility or interest
in the types of conditions listed in
* 6.508 and In Subpart C.
(5) Evaluation of Alternatives. This
discussion shall Include a comparative
analysis of feasible alternatives,
including the no action alternative,
throughout the study area. The
alternatives shall be screened with
respect to capital and operating costs:
significant direct and Indirect
environmental effects; physical, legal, or
institutional constraints; and compliance
with regulatory requirements. Special
attention should be given to long term,
Irreversible, and induced Impacts. The
reasons for rejecting any alternatives
shall be presented in addition to any
significant environmental benefits
precluded by relection of an alternative.
The analysis should consider when
relevant to the project:’i
(i) Flow and waste reduction
measures, Including infiltration/inflow
reduction;
(ii) Appropriate water conservation
measures;
(iii) Alternative locations, capacities.
and construction phasing of facilities;
(iv) Alternative waste management
techniques, Including treatment and
discharge, wastewater reuse, land
application, and individual systems;
(v) Alternative methods for
management of sludge. other residual
materials. including utilization options
such as land application, composting,
and conversion of sludge for marketing
as a soil conditioner or fertilizer
(vi) Improving effluent quality through
more efficient operation and
maintenance;
(vii) Appropriate energy reduction
measures: and
(viii) Multiple use, Including
recreation and education.
(6) Environmental consequences.
Relevant Impacts of the proposed action
shall be considered, steps to mitigate
significant adverse Impacts, any
Irreversible or Irretrievable
commitments of resources to the project
and the relationship between local short
term uses of the environment and the
maintenance and enhancement of long
term productivity. Any specific
requirements, including grant conditions
and areawide waste treatment
management plan requirements, should
be Identified and referenced. In addition
to these Items, the responsible official
may require that other analyses and
data which are needed to satisfy
environmental review requirements, be
included with the facilities plan. Such
requirements should be discussed
whenever meetings are held with Step I
grantees or potential Step 3 or Step 2 +
3 applicants. The responsible official
also may require submission of
supplementary Information before the
award of grant assistance if needed for
compliance with environmental review
requirements. Requests for
supplementary Information shall be
made in writings. e
(7) Steps to minimize significant
adverse effects. (I) This section shall
describe structural and nonstructural
- measures, If any, in the facilities plan, or
additional measures identified during
the review, to mitigate or eliminate
significant adverse effects on the human
and natural environments. Structural
provisions include changes In facility
design, size, and location; non-structural
provisions include staging facilities as
well as developing and enforcing land
use regulations and environmental
protection regulations.
.(ii) The responsible official shall not
award grant assistance if the grantee
has not made, or agreed to make,
pertinent changes in the project, In
accordance with determinations made
In a FNSI or ElS. The responsible official
shall condition a grant to seek other
ways of compliance, to ensure that the
grantee will comply with such
environmental review determinations.
(c) FNSI/EJS determination. The
responsible official shall apply the
criteria under 8.508 to any of the
following: .
(1) A complete facilities plan and the
ED. whenever review of facilities plan
has not been delegated;
(2) A complete facilities plan. the
applicant’s ED, Information document
and the preliminary environmental
assessment prepared by the State, for a
State which has been delegated
authority for facilities plan review; or
(3) Other documentation, deemed
necessary by the responsible official or
submitted by a State with delegated
review authority, adequate to make an
US determination by EPA. Where EPA
determines that an US is to be prepared,
there Is no need to prepare a formal
environmental assessment.
puIf EPA or the State Identifies
deficiencies In the ED, preliminary
environmental assessment, or other
supporting documentation, necessary
corrections shall be made before the
conditions of the Step I grant are
considered satisfied or before the Step 3
or Step 2+3 application is considered
complete. The responsible official’s
determination to Issue a FNSI or to
prepare an US shall constitute final
Agency action and shall not be subject
to administrative appeal to the EPA
Board of Assistance Appeals under 40
FRPart30.i
* L501 Findings of No SignificaM
— (FNSI) determination.
If, after completion of the
environmental review, EPA determines
that an US will not be required, the
responsible official shall prepare and
distribute a FNS1 In accordance with
* 6.104 and Subpart D of this Chapter.
The FNSI will be based on EPA’s
independent review and the
environmental assessment which will
either be Incorporated into or attached
to the FNS!. In accordance with 40 CFR
1508.2. the FNSI shall list any mitigation
measures necessary to make the
recommended alternative
environmentally acceptable. Once an
environmental assessment and a FNSI
have been prepared for the facilities
plan for a certain area, grant awards
may proceed without preparation of
additional FNSIs, unless the responsible
official determines that the project has
changed significantly from that which
underwent environmental assessrnent..e
p.* 6.506 Crttsrla tar initiating
Environmental Impact Statements (EIS).
(a) Conditions requiring ElSe. The
responsible official shall assure that an
US will be prepared and issued when
he determines that any of the following
conditions exist:
(I) The treatment works In and of
Itself will significantly affect the pattern
and type of land use (industrial,
commercial, agricultural, residential) or
the potential effects resulting from the
2—21
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Federal Register / Vol. 48, No. / Friday. January 7, 1983 / Propo8ed Rules
1019
construction or operation of the
treatment works will conflict with
established land use plans or policies; ‘is
(2) The treatment works or collector
system will have significant adverse
effects on wetlands, Including Indirect
effects, or any major part of the
treatment works will be located on
wetlands:
(3) The treatment works or collector
system will significantly affect a habitat
Identified on the Department of the
Interior’s or a State’s threatened and
endangered species lists, or the
treatment works will be located on the
habitat:
(4) Implementation of the treatment
works or plan may directly cause or
Induce changes that significantly:
(I) Displace population:
(II) Alter the character of an existing
residential area:
(lii) Adversely affect a floodplain: or
(lv) Adversely affect significant’
amounts of prime or unique agricultural
land, or agricultural operations on this
land as defined In EPA’s Policy to
Protect Environmentally Significant
AgrIcultural Land.
(5) The treatment works will have
significant adverse direct or indirect
effects on parkiands, other public lands
or areas of recognized scenic,
recreational, archeological, or historic
value; or
(6) The treatment works may directly
or through induced development have a
significant adverse effect upon local
ambient air quality, local ambient noise
levels, surface or groundwater quality or
quantity, fish, wildlife, and their natural
habitats.
(7) The treated effluent Is being
discharged into a body of water where
the present classification Is too lenient
or Is being challenged as too low to
protect present or recent uses, and the
effluent will not be of sufficient quality
or quantity to meet the requirements of
these uses.
p (b) Other conditions. The
responsible official shall consider
prepanng an EIS if it Is determined that
the treatment works may threaten a
violation of Federal, State, or local law
or requirements Imposed for the
protection of the environnient..s
8.509 Envlronmsntai Impact Stat.ment
(EIS) Prepar.tion,
In addition to the requirements
specified in subpart B, C, and D of this
part. EPA will conduct the following
activities:
(a) Notice of intent. If a determination
Is made that an EIS will be required, the
responsible official shall prepare and
distribute a notice of intent as required
In Subpart D In accordance with 6.104
(b).Scoph g. As soon as possible, after
the publication of the notice of Intent.
the responsible official will convene a
meeting of affected Federal. State and
local agencies, the grantee and other
Interested parties to determine the scope
of the EIS. A notice of this scoping
meeting will meet the requirements of
Subpart D. As part of the scoping
meeting EPA will as a mlnlmum:’us
(1) DetermIne the scope and the
significant Issues to be analyzed In
depth In the EIS:
(2) Identify those Issues wbich are not
significant;
(3) DetermIne what Information Is
needed from cooperating agencies or
other parties;
(4) Discuss the method for EIS
preparation and the public participation
sfrategy ’
(5) Identify consultation requirements
of other environmental laws, In
accordance with subpart C; and
(6) DetermIne the relationship
between the EIS and the completion of
the facilities plan and any necessaty
coordination arrangements between the
preparers of both documents.
p ..(c) Methods for preparing LISs. EPA
shall prepare this EIS by any one of the
following means is
(1) DIrectly by Its own staff;
(2) By contracting directly with a
qualified consulting firm; or
(3) By utilizing a joint EIS process,
whereby the grantee contracts directly
with a qualified consulting firm. In this
case the draft EIS serves the purpose of
and satisfies the requirement for an EID.
In this Instance, the following selection
requirements shall be fulfilled:
(i) A Memorandum of Understanding
shall be developed between EPA, the
grantee, and where possible, the State,
outlining the responsibilities of each
party and their relationship to the EIS
consultant
(ii) EPA shall approve evaluation
criteria to be used in the consultant
selection process;
(iii) EPA shall review and approve the
selection process; and
(lv) EPA shall approve the consultant
selected for EIS preparation.
6.510 Rcord of d.clalon sad
enUfication of mitigation msuurss,
(a) Record of decision. When a final
EIS has been Issued, the responsible
official shall prepare a record of
decision in accordance with 40 CFR
1505.2 prior to the submission of an
application for grant assistance (40 CFR
Part 35.2113). The record of decision
shall Include Identification of mitigation
measures derived from the EIS process
which are necessary to make the
recommended alternative
environmentally acceptable.
(b) Specific mitigation measures. PrIor
to the approval of grant assistance, the
responsible official must ensure that
effective mitigation measures Identified
In the FNSI, final EIS, or record of
decision are Implemented by the
grantee. This should be done by revising
the facilities plan. Initiating other steps
to mitigate adverse effects, or agreeing
to conditions In grants requiring actions
to minimize effects. Care should be
exercised If a condition is to be Imposed
In a grant document to assure that the
applicant possesses the authority to
fulfill the conditions. ii
,. 6.511 MonitorIng for compliance.
(a) General. The responsible official
shall ensure there Is adequate
monitoring of mitigation measures and
other grant conditions Identified in the
FNSI, final EIS, and record of decision.
(b) Enforcement. The responsible
official may consider taking the
following actions consistent with 40 CFR
85.965 and 30.430 If the grantee fails to
comply with grant conditions
(1) Terminating or annulling the grant,
(2) DIsallowing project costs related to
noncompliance:
(3) Withholding project payments,
p.(4] Finding the grantee to be
nonresponsible or ineligible for future
Federal assistance or for approval for
future contract awards under EPA
grants;
(5) SeekIng an injunction against the
grantee; or
(6) InstitutIng such other
administrative or judicial action as may
be legally available and appropriate. ‘4
p 6,512 Segmontlng projects.
(a) Criteria for segmenting When
there are overiding considerations of
costs or impaired program effectiveness.
a Step 3 grant for the building of a
discrete segment of the treatment works
may be awarded before the
environmental review is completed if
the segmented portion of the treatment
works:
(1) is noncontroversial.
(2) is necesary to correct water quality
or other immediate environmental
problems; and
(3) will not, by Its completion.
foreclose any reasonable options being
considered In the environmental re iew
(b) EIS determination If a treatment
works is to be segmented. the entire
treatment works shall be e aluaIed to
determine If an EIS is required In
applying the criteria to determine if an
EIS is required, the regional ElS
preparation staff shall be consulted
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1020
Federal Register I Vol. 48, No. 5 I Friday, January 7, 1983 I Proposed Rules
(c) Steps in segmentin.g. In no case
may grant assistance for a segmented
Step 3 project be awarded unlese
(1) the OFA has been consulted;
(2) a FNSI on the segment permitted to
proceed has been issued at least 30 days
prior to grant award; and
(3) the grant award contains a specific
agreement prohibiting the building of
additional or different segments of the
treatment works for which the
environmental review is not complete. .4
6.513 Public participation.
(a) General. It is EPA policy that
optimum public participation be
achieved during the environmental
review process as deemed appropriate
by the responsible orncial. Compliance
with public participation activities
require under this part. Part 25. and Part
35 Subpart E or I constitutes compliance
with the requirements for public
participation under this subpart
(b) Coordination. NEPA related public
participation activities undertaken in
connection with the env1ronment l
review proces. should be coordinated
with any applicable public participation
program wherever possible.
(c) Scope. Consistent with 40 R
1506.8, the responsible offidal may
Institute such additional NEPA-related
public participation procedures as (a
deemed necessary during the
environmental review process. .4
Oe.514 DsiogaUontoStatss .
(a) General. In cases where the
authority for facilities plan review hea
been delegated to the State under
section 205(g) of the Clean Water Act.
the State may be delegated the
responsibility for carrying out all EPA
activities under this part except For the
following responsibilities: .
(1) The determination of whether or
not to prepare an EIS shall be solely that
of EPA. EPA shall consider a State’s
recommendations, but the ultimate
decision under NEPA cannot be
delegated;
(2) Categorical exclusions. Findings of
No Significant Impact and the
environmental assessment shall be
approved, finalized and issued by EPA;
and
(3) Notices of intent shall be prepared
and issued by EPA.
(b) Elimination of duplication. p.. The
responsible official shall assure that
maximum efforts are undertaken to
minimize duplication within the limits
described under 6.508 and under
paragraph (a) of this section. In carrying
out requirements under this subpart.
maximum consideration shall be given
to eliminating duplication in accordance
wIth 40 CFR 1508.2. Where there are
State or local procedures comparable to
NEPA. EPA should enter Into
memoranda of understanding with a
State concerning workload distribution
and responsibilities for implementing
the environmental review and facilities
planning procesa. . 4
Dcc. -i Phd i-e- a s in J
maim co m m
2—23
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Clean Air Act
-------
CLEAN AIR ACT - CONFORMANCE WITH STATE
IMPL ( 1TATION PLANS
3 • 0 LEG ISLATIVE/REGUL&TORY FRAMEWORK
3.0.1 Clean Air Act
The Clean Air Act as amended through 1981 directs EPA to
set ambient air quality standards and to establish
limitations for new pollutant sources. Each state has
been given the responsibility of developing strategies
for attaining ambient air quality standards within its
own geographic area. Sections of the Act which affect
construction grants projects are discussed below.
Section 110 requires that each state outline a process
and provide for legally enforceable mechanisms to
sufficiently reduce air pollution to comply with
national standards by 1987.
Areas of a state which meet the standard for any of the
five categories of pollutants for which national
standards have been established are identified as
attainment ” areas. Those not meeting the standards are
“non—attainment” areas. A major portion of the Clean
Air Act (Part D) is devoted to correcting such non-
attainment areas.
The State’s total air quality control strategy is known
as the State Implementation Plan (SIP). The SIP must
include specific measures for correcting non—attainment
areas.
Section 176(c) states that Federal agencies cannot
approve or fund projects which are not in conformance
with the SIP.
Section 316 authorizes the Administrator of EPA to
condition, restrict or withhold grants for wastewater
treatment facilities:
if the facilities involve an incinerator that cannot
meet the new source performance standards (NSPS) or
the national emission standards for hazardous air
pollutant sources (NESHAPS);
if the proposed new treatment capacity will lead,
directly or indirectly, to an increase in emissions
in excess of those provided for in the SIP or will
otherwise not conform to the SIP;
November 1983 3—1
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where the project is in a non—attainment area or an
area subject to prevention of significant
deterioration and the State is not carrying out or
does not have an approved SIP which provides for the
project’s anticipated emissions; or
• if the increased emissions associated with the new
capacity will interfere with or be inconsistent with
the SIP of any of the surrounding states.
3.0.2 EPA NEPA Regulations [ 40 CFR 6.303]
Section 6.303 of EPA’s NEPA regulations sets forth
procedures for incorporating the requirement for
conformance with the SIP’S under Section 176(c) of the
Clean Air Act. These procedures include:
• assessing direct or indirect increases in emissions
and their subsequent effect on air quality;
• consulting with state and local agencies to
determine whether or not the proposed action
conforms with the SIP; and
assuring in the FNSI or draft EIS that the proposed
action conforms with the SIP.
3.0.3 Proposed Rulemaking
On April 1, 1980, EPA issued an advanced notice of
proposed rulemaking (45 FR 21590] to implement Section
176(c) of the Clean Air Act. The proposed rulemaking
requires states to adopt procedures and criteria to help
ensure that Federal actions are in conformance with the
SIP and requires Federal agency procedures for
determining conformance of their action with the SIP.
To date, the only follow-up has been a Memorandum of
Understanding regarding transportation—related air
quality issues.
Pending adoption of the proposed rules and the
subsequent development of more specific procedures by
individual states and Federal agencies, the advanced
notice of proposed rulemaking recommended that the NEPA
review be used to enable assurance of conformance.
3.0.4 EPA Policy and procedures Memorandum [ 45 FR 533821
On August 11, 1980 EPA issued a policy and procedures
memorandum to Implement the construction grant
limitations in Section 316 of the Clean Air Act (see
Attachment 3-1). The purpose of this policy is to
3—2 November 1983
-------
ensure that wastewater construction grants projects do
not contribute to air quality deterioration and to
invoke sanctions on states which have not fully complied
with SIP adoption requirements. The 316 policy
specifies the conditions under which grants must be
withheld, discusses extenuating circumstances where
exceptions are allowed, and discusses how SIP’s can be
revised or mitigation programs can be adopted to allow
certain projects to proceed.
The basic policy elements include:
• assuring compliance of new sewage treatment works
with the new source performance standards (NSPS) and
the national emission standards for hazardous air
pollutants (NESHAPS),
• withholding construction grants in areas where
states have not made good faith efforts to submit or
carry out an SIP revision,
• reconciling population projections used for air and
water quality planning to ensure that SIP’S provide
an accurate accounting of the increased indirect
emissions associated with new sewage treatment
capacity,
• withholding portions of construction grants for
major growth—related projects in attainment areas:
a. where the emissions associated with the project
will contribute to the violation of any national
ambient air quality standard (NAAQS).
b. where the SIP and water quality planning
population projections are inconsistent by n re
than 5 percent,
• consulting with adjacent states to prevent the
increased emissions associated with new sewage
treatment capacity from interfering or being
inconsistent with any other SIP.
It is anticipated that the 316 policy memorandum will be
revised to reflect the 1982 Construction Grant
amendments. However, the basic policy for sanctions
will, not change.
November 1983 3—3
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3.1 IVIRONMEWThL REVIEW PROCEDURES UNDER 205(g)
The major steps for complying with the Clean Air Act
during a 205(g) review are shown in Figure 3.1 and
discussed below.
3.1.1 procedures During Facilities Planning
The State should explain the requirements for
incorporating control technology for direct emissions
and for quantifying and mitigating indirect emissions to
the Grantee and his consultant during the initial stages
of the facilities planning process.
During evaluation of the alternatives, the Grantee must
develop the analyses required by 40 CFR 6.303(d) and
include these in the BID. The Grantee may wish to
contact the state agency with primary responsibility for
the SIP to obtain air quality data and advice during the
development of the analyses.
Indirect air quality impacts due to population growth
will usually be the primary issue unless a sludge
incinerator is proposed. Direct impacts due to point
source or vehicle emissions need only be considered when
State air quality permits are required or the increase
in vehicle traffic for project construction or operation
is greater than 10 percent.
population projections for the facilities planning
analysis must meet the provisions of Section 5.5.1 of
Construction Grants 1982 (CG—82). This document
requires use of current State projections from the Needs
Survey. It also requires that the projected State
figures be consistent with the projections used for air
planning. The population projections in the SIP’S are
being or will be revised to conform to the projections
in the Needs Survey.
3.1.2 Review of RID and Preparation of preliminary BA by State
Based on the information being developed in the
facilities planning process, if the project appears to
have significant adverse impacts, the State should
consult with the state agency with primary
responsibility for the SIP, with the non—attainment
enforcement agency designated under Section 174 of the
Act, and, where appropriate, with the metropolitan
planning organization to find out whether the project
complies with the SIP. If no adverse impacts are
anticipated, the State can assume conformance without
consultation.
3—4 November 1983
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AVAILABLE
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In either case, the preliminary EA should contain a
statement assuring conformance based on the
determinations contained in 40 CFR 6.303(d).
Documentation of consultation, where it was carried out,
should be submitted to EPA by the State along with the
preliminary EA.
Where an assurance of conformance cannot be made, the
State will notify EPA, and EPA will recommend additional
planning to find a way to assure conformance or will
determine that an ElS is necessary under the criteria of
40 CFR 6.508(a) (6) or 6.508(b).
3.1.3 EPA Review
Based on the review of the submitted information, EPA
will, in the case of a conforming project, issue a
FNSI. Where no consulation was undertaken, the review
period of the FNSI will allow the state agency with
primary responsibility for the SIP an opportunity to
concur or object to the assurance of conformance in the
EA.
In the case of a Step 2+3 grant request, EPA must
condition the grant to require that the design
incorporate appropriate technology to control direct
emissions.
3.2 NTACTS
3.2.1 Federal Agencies
Air Management Division 617—223—5633
U.S. Environmental Protection Agency
Region I
J. F. K. Federal Building
Boston, MA 02203
3.2.2 State Agencies
CONNECTICUT
Department of Environmental 203—566—4030
Protection 203—566—3160
Division of Environmental Quality
Air Compliance Unit
Air Quality Enforcement
165 Capitol Avenue, Room 144
Hartford, CT 06106
November 1983 3—7
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MAI NE
Department of Environmental 207—289—2437
Protection
Bureau of Air Quality Control
Ray Building AMHI
Hospital Street, Station #17
Augusta, ME 04333
MASSACHUSETTS
Department of Environmental Quality 617—727—2658
Engineering
Air Quality Control Division
1 Winter Street
Boston, MA 02108
NEW HAMPSHIRE
Air Resources Agency 603—271—4572
Health and Welfare Building
Hazen Drive
Concord, NH 03301
RHODE ISLAND
Department of Environmental 401—277—2808
Management
Division of Air and Hazardous Materials
75 Davis Street, Room 204
providence, RI 02908
VERMONT
Agency of Environmental Conservation 802—828—3395
Environmental Protection Division
Air and Hazardous Materials
Montpelier, VT 05602
3.3 REFER CES
The Clean Air Act 42 U.S.C. 7478 as amended August 1977.
Transmittal of Advance Notice of Proposed Rulemaking to
Implement Section 176(c) of the Clean Air Act, April 8,
1980, EPA Memorandum from John 0. Hidinger to Directors,
Air and Hazardous Materials Divisions.
USEPA. “Municipal Wastewater Treatment Works,” Federal
Register , 40 CFR 35, Vol. 44, No. 156, August 11, 1980,
53382—53389.
USEPA, Office of Water Program Operations (WH—547).
Construction Grants 1982 (CG—1982) , Interim Final.
Washington, D.C.: 430/9—81—020, July 1982.
3—8 November 1983
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ATTACHMENT 3-1
53382 Federal Register / Vol. 45, No. 156 / Monday. August 11, 1980 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 35
IFRL 1524—71
Municipal Wastewater Treatment
Works; Construction Grants
Limitations Provided by Section 31601
the Clean Air Act Policy and
Procedures
AGENCY: Environmental Protection
Agency.
ACTION: Notice of policy and procedures
memorandum.
SUMMAR The purpose of the following
memorandum is to set forth policy and
procedures for implementing the
municipal wastewater treatment works
construction grants limitations provided
in section 316 of the Clean Air Act, as
a mended (Pub. L No. 95-05). Section 310
of the Clean Air Act allows the
Administrator of the Environmental
Protection Agency (EPA) to withhold.
condition or restrict municipal
wastewater treatment works
construction grants funded under
section 201 of the Clean Water Act (Pub.
L. No. 95—217) in areas where the state
implementation plan (SIP) has not been
approved or conditionally approved, is
not being implemented, or does not
provide for the increased air pollution
emissions resulting directly or Indirectly
from the proposed treatment works.
DATE The section 316 policy Is effective
August 11, 1980.
FOR FURTHER INFORMATION CONTACr
Cary B Hinton. Office of Transportation
and Land Use Policy (ANR—445)
Environmental Protection Agency, 401
M Street. S W.. Washington. D.C.
20460. (202) 755—0570, ot
Roger Rihm. Office of Water Program
Operations (WH—595), Environmental
Protection Agency. 401 M Street, SW.,
Washington, D.C. 20460, (202) 755-’
8056.
SUPPLEMENTARY INFORMATION
Background
This notice announces final EPA
policy and procedures for determining
whether any limitations on federal
assistance for the construction of
sewage treatment works under the
Clean Water Act [ 33 U S C et seq] are
necessary to implement section 318 of
the Clean Air Act [ 42 U.S C. 7616].
EPA published Its intent to develop
policy and procedures under section 318
in the Federal Register on July 2, 1979 (44
FR 38575) Public comments were
requested within 30 days of this notice.
All comments that were received.
including those received after this
deadline, have been reviewed and
considered in the development of the
final policy and procedures.
The basic elements of the section 310
policy include:
• Assuring compliance of new sewage
treatment works with the new source
performance standards (NSPS) and the
national emission standards for
hazardous air pollutants (NESHAPS).
• Withholding construction grants In
areas where states have not made good
faith efforts to submit or carry out a SIP
revision.
• Reconciling population projections
used for air and water quality planning
to ensure that SIPs provide an accurate
accounting of the increased indirect
emissions associated with new sewage
treatment capacity.
• Withholding portions of
construction grants for major growth.
related projects In attainment areas,
based upon case-by-case determinations
by the EPA Regional Administrators La
the following situations:
—Where the emissions associated
with the project will contribute to the
violation of any national ambient air
quality standard (NAAQS).
—Where the SIP and water quality
planning population projections are
inconsistent.
Portions of the grants that fund
increased capacity will be withheld until
the governor is notified of the need to
accommodate any unaccounted
emi8sions in a SIP revision or the grant
applicant adopts a mitigation program,
• Consulting with adjacent states to
prevent the increased emissions
associated with new sewage treatment
capacity from interfering or being
inconsistent with any other SIP.
The policy and procedures will
provide EPA and the states with a
mechanism for Insuring that the
provisions of section 318 are applied
consistently nationwide In areas that
are not attaining all NAAQSs or that are
subject to the requirements for the
prevention of significant deterioration
(PSD) of air quality. EPA announces
elsewhere in this Federal Register that it
is considering revising the municipal
wastewater treatment works
construction grants regulations and/or
the regulations to implement the
National Environmental Policy Act
(NEPA) to include provision for the
requirements of section 316.
Response to Comments on Proposed
Policy
On July 2, 1979 EPA published in the
Federal Register and advance notice of
interim policy and procedures to
implement section 310. The notice
included a copy of the June 8. 1979
memorandum to the Regional
Administrators from David C. Hawkins.
EPA Assistant Administrator for Air,
Noise, and Radiation and Thomas C.
Jorling, former Assistant Administrator
for Water and Waste Management. The
memorandum announced EPA ’s Intent
to implement section 310 by developing
policy and procedures and Initiating
revisions to the construction grants
regulations. The notice requested public
comment on a recommended approach
that would serve as a ba8is for both of
these actions. EPA received 23 comment
letters and 30 comments from the toll
free telephone “hotiine” in response to
this notice. As a result of the comments,
numerous changes were made to
Improve the 8ection 316 policy and
procedures. The following is the’
response to the substantive comments
made on the recommended approach for
implementing section 316:
1. Request for expanded comment
procedures.
Several coinmenters requested an
extension of the comment period beyond
the August 1, 1979 (or 30-day) limit. No
formal extension of the comment period
was made, but because the final policy
did take several additional months to
complete, comments that were received
as late as May 7, 1980 were considered.
One commenter recommended that EPA
establish a national advisory task force
to assist in the development of the
section 318 policy. Although EPA did not
establish such a task force, at the
request of several private and public
interest groups EPA did provide briefing
meetings during the course of the
development of this policy.
2. Revised regulations needed before
Issuance of section 315 policy.
The advance notice indicated that
EPA was considering the development
of both regulatory revisions and policy
and procedures to implement section
310. One cominenter questioned why
EPA would Issue policy and procedures
before It had promulgated regulations.
EPA believes that it has already
promulgated the necessary regulatory
framework for the review of the air
quality impact of sewage treatment
works. Existing requirements in both
EPA ’s municipal wastewater treatment
works construction grants regulations
(40 CFR 35.925—14) and EPA a
regulations to implement NEPA (40 CFR
0.506)require a review of the air quality
impact of proposed sewage treatment
works. This policy provides guidance to
implement these existing regulatory
requirements. in addition, as indicated
elsewhere in this Federal Register. EPA
Is initiating rulemaking to revise its
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Federal Register! Vol. 45, No. 256 / Monday, August 11. 1980 I Rules and Regulations
53383
construction grants regulations and/or
its regulations Implementing NEPA.
Such revi ioi a would both better inform
grant applicants of their responsibilities
and facilitate EPA’s implementation of
this policy.
3. Allow state policy to supersede
EPA section 318 policy.
One respondent requested EPA to
allow a functionally equivalent (but
differeni) state policy on section 316 to
supersede EPA ’s policy. Although EPA
believes that the cooperation of the
states is essential to the effective long-
term implementation of section 316, it
finds that the delegation of its authority
to individual states Is inadvisable.
Implementation of section 316 Is a part
of the Administrator’s responsibilities to
approve, conditionally approve,
disapprove and promulgate SIPs. The
revised policy notes that there are
significant state responsibilities to
ensure the effective Implementation of
section 316 requIrements.
4. Provide general exemptions to the
policy and prvcedwes.
A few commentere requested that
EPA provide more general exemptions
for construction grant applicants to the
section 316 policy and procedures. Two
commenters suggested that applicants
for facility design (step 2) and facility
construction (step 3) grants should be
exempted to avoid seriously Impeding
the water pollution clean-up efforts of
the construction grants program.
Although some construction grants in a
limited number of areas may be
delayed. EPA believes that the efforts to
clean the nation’s waters will not be
imperiled. The clear intent of Congress
through the enactment of section 316 Is
that EPA should not fund the
construction of sewage treatment works
that will induce increased air pollution
until the new emissions are provided for
in an adequate SIP or are otherwise
mitigated. One commenter requested
that since facility planning (step 1)
grants were for planning purposes and
would not contribute to increased air
pollution they should be exempted from
the provisions of this policy. EPA
believes that it is most appropriate for
grantees to consider the provisions of
the section 316 policy during the facility
planning phase, rather than increasing
the potential for step 2 or step 3 grant
approval delays. In addition. EPA finds
that the section 316 compliance
requirements for step I grantees are
consistent with the existing air pollution
assessment and mitigation requirements
of the construction grants program. (The
basic elements of these requirements are
outlined in Attachment A to the section
310 policy.)
To avoid conflict with the purposes of
the construction grants program. some
commenters suggested that EPA exempt
prQposed sewage treatment works from
the provisions of the sectIon 316 policy
In areas where water pollution problems
are more serious than air pollution
problems. Although It is unnecessary to
provide this exemption in all areas, EPA
does believe that a case.by-case
exemption should be allowed in certain
nonattainznent areas even If the 1979 SIP
revisions required by Part D of the Clean
Air Ad have not been approved or
conditionally approved and the state Is
not making reasonable efforts to submit
the SIP. Therefore, the section 316 policy
has been revised to allow the Regional
Administrator to exempt municipal
wastewater treatment works
construction grants from the grant
withholding provisions of this policy
when the project Is needed for
immediate public health needs and
would not expand capacity by more
than one million gallons per day (mgd).
Another revision to the section 318
policy provides that construction grants
will not be withheld for those projects
which are designed to improve
treatment capability without expanding
treatment capacity to provide for future
growt
5. Section 318 policy o.nd procedures
should not apply to attainment areas.
One commenter believed that In
attainment areas sectIon 316 only
requires the control of increased
emissions resulting directly from sewage
treatment works which are classified as
major pollution sources. According to
the commenter, the policy should not
require the control of increased indirect
emissions In attainment areas. EPA
finds that this Is an incorrect reading
and interpretation of section 316(b).
States are explicitly required by section
316(b)(2) to have and carry out an EPA
approved SIP that provides for the
increased emissions of each air
pollutant from stationary and mobile
sources which may be reasonably
anticipated to increase because of new
sewage treatment capacity in both
attainment or nonattainment areas.
6. Demonstration of foci lity
compliance with NSPS and NESHAPS
requirements.
One commenter noted that it Is not
possible for a construction grant
applicant to demonstrate compliance
with all federal (NSPS and NESHAPS)
and state emissions standards prior to
the award of a step 2 grant. The
demonstration of standards compliance
requires facility design work which must
be done in the step 2 design phase. EPA
has modtfled this requirement in the
revised policy to clarify that EPA’s
intent is that the step 2 grantee will
include appropriate design criteria to
comply with NESHAPS, PSD and state
emission requirements before the step 3
grant award and the NSPS requirements
prior to facility operation. Another
commenter suggested that EPA should
require the states to define an allowable
amount of direct emissions from new
sewage treatment works as a percentage
of the SIP’s total areawide stationary
source emissions projection. EPA
currently requires all SIPs for
nonattainment areas to either
accommodate or offset the increased
emissions from all new or modified
major and nonmajor stationary sources.
However, EPA believes that the
allocation of the growth of emissions
within a nonattaininent areas is clearly
a state responsibility and is not a matter
to be prescribed by EPA.
It was suggested by one respondent
that EPA should mention in the policy
that sludge incinerators which are
designed to recover energy are
exempted from the nonattainment
requirements under EPA’s emission
offset interpretive ruling (44 FR 3276).
EPA has not highlighted thi s exemption
in the section 316 policy because the
offset ruling applies in only limited
circumstances after July 1, 1979. Some
states have adopted that provision of
EPA’B offset ruling in their SIPs and In
these instances there is a narrow
exemption provided for resource
recovery facilities which burn municipal
sludge. New resource recovery facilities
that burn sludge are exempted from
EPA’s offset policy only under the
following conditions: (1) the applicant
makes the best efforts to obtain
sufficient offsets to comply with the
conditions of the policy and is
unsuccessful, (2) the applicant has
secured all available emissions offsets,
and (3) the applicant will continue to
seek the necessary emission offsets and
apply them when they become
available. This exemption does not
affect the requirements for compliance
with NSPS or NESHAPS.
7. Revise threshold criteria for
determining section 316 policy
compliance of construction grant
applications.
Several commenters found that the
total flow capacity threshold of one mgd
was too low. Others said it was too high.
Several claimed that the use of an
Interceptor diameter threshold was
Irrelevant. Other commenters found the
population growth ratio to be either to
low or too high. To provide greater
administrative flexibility EPA has
modified these threshold criteria for the
section 318 policy to allow for greater
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53381 Federal Register / Vol. 45, No. 156 I Monday, August 11, 1980/ Rules and Regulations
discretion by the Regional
Administrators in the review of new
construction grant applications. In areas
ith approved, conditionally approved
or promulgated SIPs the Regional
Administrator will conduct a mandatory
review of all grant applications for the
construction of sewage treatment works
hich will increase capacity in excess
of ten mgd. At the discretion of the
Regional Administrator, any grant
application for a facility that will
increase capacity in excess of one mgd
may also be reviewed, if there is a
possibilty that the Increased indirect
emissions associated with the facility
may not conform to the SIP’s provision
for demonstrating reasonable further
progress (RFP) towards attainment of all
NAAOSs by the required date.
8. Oppose withholding construction
grants under any circumstances.
There were six comments that
opposed the withholding of construction
grants under any circumstances. A few
commenters believed that the
withholding of construction grants
would unfairly emphasize air pollution
considerations over water pollution
problems. Others simply believed that
the withholding of grants would
seriously Imperil the national housing
industry. As previously noted, EPA has
revised the section 316 policy to allow
some exemptions to the provisions for
withholding grants when the sewage
treatment works are needed to take care
of an existing water pollution problem
which endangers public health and
would not expand capacity by more
than one mgd. In addition, the policy
would exempt from the grant
withholding provisions those projects’
which improve treatment capability but
would not expand treatment capacity
for future growth. EPA recognizes that.
as a by-product of this policy. In a
limited number of nonattainment areas
there may be a delay of some new
housing construction due to the lack of
sufficient excess sewage treatment
capacity. Based upon the progress that
the States are making to submit and
implement approvable SIPs, EPA does
not believe that the grant withholding
provisions of this policy will seriously
impact the national housing industry.
A few cornmenters believed that EPA
misinterpreted the basic intent of
Congress in section 316. They believed
that section 318 created a mechanism to
impose a sanction against states to
assure the submittal and
implementation of adequate SIPs.
Because it is the responsibility of the
stdtes to develop, submit and implement
the SIPs, these commentera believed
Ihdt Congress did not intend that
individual construction grant applicants
should be penalized by the withholding
of funds or the imposition of new review
and mitigation requirements. The simple
construction of section 318 only allows
the Administrator to withhold, condition
or restrict construction grants for
sewage treatment works “which the
Administrator is authorized to make to
any applicant.” Section 318 specifically
refers to “any applicant” and “any
grant.” Therefore, the provisions apply
to all eligible grant applicants under the
construction grants program including
municipal, lntermunicipal. state, and
Interstate agencies (40 CFR 35.920—1).
EPA does not believe that the intent of
Congress was to limit the application of
the section 318 provisions only to th’se
construction grant applications
submitted by state agencies. To the
contrary, EPA believes Congress
intended that the increased emissions
resulting directly or indirectly from all
EPA funded sewage treatment works
would be mitigated and provided for in
an EPA approved. conditionally
approved or promulgated SIP.
EPA also believes that the provision.
of section 310 apply to all steps of the
construction grants program, established
pursuant to section 201 of the Clean
Water Act. Section 212(1) of the Clean
Water Act defines the construction
process, as used In Title U of the Clean
Water Act. Grants for Construction of
Treatment Works, in a manner which
clearly includes activities which are
funded by step 1, and step 2, as well as
step 3 grants. EPA’s construction grants
regulations (40 CFR 35900 et. seq.) also
refer to construction as all three steps of
the sewage treatment works
development process.
9. Request for public hearings when
construction grants withheld.
One commenter requested that EPA
hold public hearings whenever it
decides to withhold a construction grant
award pursuant to the provisions of the
section 318 policy, Although public
comments on construction grant
withholding actions may be useful, EPA
believes that individual public hearings
would be an excessive administrative
requirement. EPA has decided that the
best opportunity for public comment
would be provided in conjunction with
the public notification and review
procedures, established pursuant to
section 178(a) of the Clean Air Act. for
limiting federal assistance for air quality
and transportation related activities.
The section 176(a) procedures (45 FR
24092) provide a 30-day public comment
period after EPA has published in the
Federal Register its finding that a state
has failed to submit, or is not making
reasonable efforts toward submitting. a
revised SIP as required by Part D of the
Clean Air Act After considering the
public comments, EPA will publish the
final section 178(a) finding in the
Federal Register. In accordance with the
provisions of the Section 316 policy,
EPA will begin withholding the approval
of construction grant applications for
those areas included in the proposed
notice when the final section 176(a)
finding Is published. Removal of this
limitation from an area will be alter EPA
proposes the action in a Federal Register
notice, provides a 30-day public
comment period and publishes final
action. Normally. this can be done at the
same time EPA proposes and finalizes
approval of the SIP revision. Although it
can also be done when reasonable
efforts have been demonstrated, absent
an approvable SIP, removal of funding
limitations on this basis will be done
only In rare cases.
lCt Construction grant reviews to
determine if increased indirect
emissions provided for in the SIP are
unreasonable.
Three commenters believed that
assessment of the amount of increased
emissions that are indirectly induced by
new sewage treatment capacity is not
technically feasible. The air pollution
impact of new growth has routinely
been assessed by state, regional and
local air quality management agencies
for several years. The assessments of
increased indirect emissions from new
sewage treatment works which have
occurred In recent years demonstrate
that there are existing techniques that
are feasible for undertaking this task. In
1978. EPA’s Office of Air Quality
Planning and Standards published two
reports: Growth Effects of Major Land
Use Projects (Wastewater Facilities)
Volume I . ’ Model Specification and
Causal Analysis (EPA Report No. 450/3—
78—014a, March 1978) and Volume II:
Summary, Predictive Equations and
Worksheets (EPA Report No. 450/3-78—
014b, May 1978) which document a
modeling technique for conducting this
assessment. in addition, EPA’s Office of
Transportation and Land Use Policy will
soon publish “Air Quality Reviews for
Wastewater Management Facilities: A
Guidebook on Procedures and
Methods.” This publication will present
a review of alternative modeling and
impact assessment techniques and
alternative mitigation measures.
Another respondent believed that the
air pollution impact review at each step
of the construction grant process’Would
duplicate the step I environmental
assessment requirements included in
EPA’s regulations to implement NEPA.
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Federal Register / Vol. 45, No. 156 / Monday, August 11. 1980 I Rules and Regulations
53385
The policy has been revised to
emphasize that the assessment of
Increased Indirect emissions should
occur during the step 1 facIlity planning
phase. EPA believes that a step 1
grantee should be able to complete this
assessment as a part of the
environmental Information document.
prepared pursuant to EPA’s NEPA
regulations, which must be submitted
along with the facility plan.
One cominenter felt that It Is not the
responsibility of a grant applicant to
assure that the Increased Indirect
emissions associated with a facility are
Included in a SIP. Four others believed
that the grantee does not have the
responsibility to offset or mitigate the
Increased indirect emissions associated
with a sewage treatment works. Section
316 is clear In Its requirement that the
Increased indirect emissions from a new
sewage treatment works must not be
greater than those provided for In the
SIP. EPA concurs with the commenters
that believe it would be unreasonable to
delay the approval of a construction
grant until a SIP revision has been
approved which accommodates the
increased emissions. Therefore, EPA has
revised the policy to provide an
opportunity to approve construction
grants when either the governor Is
notified by EPA to revise the SIP to
accommodate the increased emissions.
or the grantee commits to implement an
adequate emissions mitigation program.
EPA believes that the Increased
indirect emissions will usually be
accommodated In a SIP revision. The
notification to the governor that a SIP
revision is necessary to accommodate
the increased indirect emissions should
generally ensure that corrective actions
will be taken. EPA may invoke the
funding limitations pursuant to section
176(a) and section 316 if the SIP revision
Is not submitted or Is found Inadequate.
In a limited number of cases, however, It
may be preferable to require the grant
applicant to submit an emissions
mitigation program. The use of a
mitigation program will effectively mean
that the Increased indirect emissions
should be reduced to the point where
they will not endanger the SIPs
provisions for demonstrating RFP
towards attainment of all NAAQSS by
the required date.
Another cominenter suggested that
EPA should req ulre the states to include
project lists In the SIP to indicate that
the increased Indirect emissions have
been provided for In the SIP. Although
the states may include lists of planned
sewage treatment works, which have
increased Indirect emissions that are
provided for In the SIP, there are no
provisions In sectIon 316. or anywhere
else in the Clean Air Act, which
authorize EPA to make this a mandatory
SIP requirement In those cases when a
state Includes a project list in the SIP,
EPA will still have to verify that the
projected Increased indirect emissions
associated with the facility at the time
of grant application are consistent with
the amount of emissions that were
assumed to be provided for In the SIP.
11. Use of consistent population
projections places an unfair burden on
the grantee.
One commenter questioned the
significance of the relationship between
population projections and increased air
pollution induced by new sewage
treatment capacity. EPA believes that
there is an implicit accommodation of
new growth. and mitigation of increased
emissions, when the population
projections on which the SIP, 208 state
and areawide water quality
management plane and 201 facility plans
are based can be determined to be
consistent. This consistency implies that
the air pollution associated with the
residential, commercial and minor
Industrial growth resulting from the new
treatment capacity will not exceed the
SIP’s projection of areawide stationary
and mobile source emissions which
must be reduced to attain the NAAQS.
Several commenters found that If the
population projections are inconsistent
then it would be in appropriate for the
grant applicant to seek their
reconciliation. EPA has concurred with
this viewpoint, and on January 15, 1980
directed the Regional Administrators to
carry out this responsibility. Several
commenters also believed that when the
population projections are inconsistent
EPA should not place a hook-up
restriction In the grant award and the
national pollutant discharge elimination
system permit. One commenter
suggested that use of a mitigation
program would be fairer and more
effective. The section 316 policy has
been revised to provide the opportunity
for this recommended approach. Three
commenters recommended that when
EPA finds the population projections to
be consistent grantees should not have
to commit to support the Implementation
of all SIP measures because this may
exceed their authority. EPA concurs
with this recommendation and has
deleted this requirement from the
section 316 policy. However, EPA
cautions those grantees that also have
specific SIP Implementation
responsibilities to carry them out in
order to avoid any future withholding or
delays In the award of construction
grants in their area.
12. Emissions mitigation program
requirements are excessive.
Four cominenters believed that the
emissions mitigation program
requirements outlined In the
recommended approach were excessive
because many grant applicants lack the
authority to implement the mitigation
measures. EPA has modified the
mitigation program requirements in the
section 316 policy to respond to these
concerns. The mitigation measures may
now be adopted through an Intra-
municipal or inter-municipal agreement.
This allows single purpose wastewater
management agencies to work with
multi-purpose units of government that
service the same areas to develop and
implement the mitigation program.
EPA also modified the emissions
mitigation program requirement that the
appropriate mitigation measures would
have to be incorporated within the SIP.
The program requirements now provide
that the grantee will request a SIP
revision to incorporate the adopted
mitigation program. And, as previously
noted, EPA has deleted the requirement
for a commitment to implement the SIP
measures over which the grant applicant
has no control.
One commenter requested that EPA
delete the required commitment to
monitor and report on the
implementation of ‘ill mitigation
measures because this is actually the
reponsibility of the state and EPA. and
not the grantee. EPA has not deleted this
requirement because we believe it to be
consistent with a provision of our NEPA
regulations (40 CFR 6.509(a)) and
necessary to judge the eligibility of the
grantee for future construction grant
awards.
13, Pro vide guidance on cost-eligible
items.
Two commenters requested that EPA
provide guidance in the policy on
whether the correction of SiP
deficiencies or the development and
implementation of the emissions
mitigation program are cost-eligible
Items. Section IV of the policy provides
a description of the allowable project
costs associated with the
implementation of the section 316 policy
This description is consistent with the
existing construction grants program
regulations (40 CFR 35.940)
The Administrator has determined
that the section 316 policy is nationally
applicable and is based on
determinations of nationwide scope an
effect. EPA intends that, for purposes o
judicial review, the interpretations made
by this notice be treated as severdble
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53388 Federal Register / Vol. 45, No. 158 I Monday, August 11, 1980 1 Rules and Regulations
Issued on July 23,1980.
Douglas M. Goalie,
Adimnsserotor, Env,r’unmontoIPmieajon
Agency
On July 23, 1980, the EPA
Administr . tor sent the following
memorandum:
Memorandum
To Regional Administrators, Regions l—X .
Subject Policy and Procedures to Implement
Section 316 of the Clean Air Act, as
Amended.
I. Purpose
This memorandum establishes policy and
procedures for the implementation of the
sewage treatment works construction grants
limitations provided under section 316 of the
Clean Air Act, as amended (Pub. L. No. 95—
95).’ To further ensure the consistent
nationwide implementation of the section 316
provisions, EPA has also u’ittlated the
development of revisions to the construction
grants regulations Section 316 allows the
Administrator of the Environmental
Protection Agency (EPA) to withhold.
condition or restrict grants for the
construction of sewage treatment work.
under the following situations.
• Where the treatment works will not
comply with new source performance
standards (NSPS) established under section
111 of the Clean Air Act or with national
emission standards for hazardous air
pollutants (NESHAPS) established under
section 112 of the Act (316 (b)(1)J.
• Where, in a nonattajnrnent area or an
area subject to the requirements for the
prevention of significant deterioration (PSD)
of air quality, the state is not carrying oul the
state implementation plan (SIP) or there Is
not an EPA approved SIP that provide, for
the increase of each air pollutant that I.
reasonably anticipated to result either
directly or indirectly from proposed new
sewage treatment capacity 1318(b)(2)1.
• Where construction of the proposed
treatment works will create new sewage
treatment capacity that may reasonably be
anticipated to cause or contribute to, directly
or indireclly. an increase in emissions of any
pollutant in excess of the Increase provided
for under the SIP (318(b )(3)(A)).
• Where the proposed new sewage
treatment capacity will otherwise not be In
conformity with the SIP f316(b)(3)(S)J.
• Where the increased emission,
associated with the proposed new sewage
treatment capacity will interfere with, or be
inconsistent with, the applicable
implementation plan for any other state
1316(bl(4U
The implementation of this policy
con tinues many existing efforts to reduce the
direct and indirect air quality impacts of new
sewage tredtment works. The policy
supplements existing guidance and provides
procedures for the implementation of new
EPA regulations It provides guidance in
fulfilling EPAs sewage treatment works
construction grants regulatory requirement
(40 CFR 15 925—14) that ‘the treatment works
will comply with all pertinent requirement. of
the Clean Air Act.” Background on other
existing requirements of the construction
grants program related to air quality impact.
Is included in Attachment A.
On November 0, 1979 EPA published In the
Federal Register (44 FR 64174), the final rule
to Implement the procedural provisions of the
National Environmental Policy Act (NEPAl.
SectIon 6.303 of these regulations establishes
new procedures by which the Agency will
incorporate into the environmental review
proces . the determination of conformity of
certain types of EPA actions with a SIP. This
policy is designed to ensure that the
emissions quantification, control and
mitigation requirements for step I
construction grants are implemented in
consonance with EPA’s procedure, to
Implement NEPA.
B. General Provisions
Each Regional Administrator shall
administer the construction grants program to
ensure that the emissions that result directly
or indirectly from the construction of new
sewage treatment capacity conform to the
requirements of the applicable SIP.’These
requirements include the attainment and
maintenance of the national primary and
secondary ambient air quality standard.
(NAAQS) established for each air pollutant
pursuant to section 109 of the Clean Air Act.
The requirements also include those for the
protection of air quality cleaner then the
NAAQS. In addition, sewage treatment
works must meet the emission limitations
established under section 111 and section 11.2
of the Act.
The increased emission, associated with
the location of a sewage treatment works or
the expansion of treatment service In an
attainment area must ha provided for in the
SIP as a component of the areawide end
minor source growth rates that are applied to
the annual increment for the pollutants
(sulfur dioxide and perticula tea) regulated
under current PSD regulations, pursuant to
Part C of the Clean Air Act. The increased
emissions associated with the expanded
treatment capacity for an attainment area
will also be subject to any future l irtutatloria
established for PSD Set fl pollutant.
(hydrocarbons, carbon monoxide, nitrogen
oxides and lead). Development of regulations
dealing with these pollutants has been
initiated by EPA.
When the admmistretlon of the
construction grants program has been
delegated to the state, it will continue to be
the responsibility of the Regional
Administrator to ensure compliance with the
provisions of this policy prior to the final EPA
approval of any grant award.’To the greatest
extent practicable, the Regional
Administrator shall utilize EPA.
environmental review procedures for the
construction grants program to carry out the
provisions of this policy. Nothing in these
procedures amends or alters EPA’,
regulations (40 CFR 6 500) to Implement the
procedural requirements of NEPA as they
apply to the sewage treatment work.
construction grants program. Any additional
Joint review procedures should be included
as a component of the annual State ’EPA
Agreement. The responsibilities of EPA
regional offices, states and construction
grants applicants ore summarized in
Attachment B.
IlL Ccxistructicn Grant. Award Limitation.
A. Control of Direct Emissions
The Regional Administrator shall condition
step 1 and step 2 grants for the construction
of sewage treatment works that will have
direct emissions (eg, sludge Incineration) to
incorporate into the facility plan and design
sufficient control techniques to meet the
federal NSPS, NESHAPS and PSD
requirements end other state emission
standards contained in the SIP Failure to
comply with this condition will result in the
grantee being ineligible for subsequent
construction grant awards for these sewage
treatment works.
The applicant for a step 3 grant for the
construction of a sewage treatment works
that will be a direct source of emissions shall
obtain, prior to grant approval, all air
pollution control permits from the EPA and
state or local air pollution control agencies
with regulatory Jurisdiction over NESHAPS.
P 50 and the SIP Failure to obtain permits
will result in the withholding of the award of
grant funds until the applicant can
demonstrate or assure compliance.
B. Control of Indirect Emissions
I In Areas Without Approved or
Conditionally Approved SIPs
The Regional Administrator shall withhold
all sewage treatment works construction
grants in nonattaitiment areas where the 1979
SIP revision Is not approved or conditionally
approved and the etate is not making
reasonable efforts to submit the SIP.
In addition. if the Regional Administrator
finds In the annual determination of
reasonable further progress (RFPJ that
implementation of the SIP in a nonattainment
area where the sewage treatment works
would be located is not proceeding towards
the attainment of all NAAQS, then eli step 2
and step 3 construction grant awards in that
nonattauirnent area will be withheld. 4
The public notification arid review for the
withholding of any construction grants will
be done using the procedures for making
determinations pursuant to section 176 (a) of
the Clean Air Act, for withholding
transportation and air quality funding Any
detemilnation made pursuant to these
procedures is binding in EPA Board of
Assistance Appeals dispute proceedings
under 40 CFR Part 30, Subpart J.
Those grants far sewage treatment works
which the Regional Administrator finds are
needed for immediate public health needs
and will not expand usable capacity by more
than one million gallons per day (mgd) will
not be withheld In addition, construction
grants will not be withheld for those projects
which improve treatment capability, but
would riot expand treatment capacity for
future growth.
2. In Areas With Approved, Conditionally
Approved or Promulgated SIP.
The Regional Adimniitratar shall condition
step 1 construction grants in nonattainment,
attainment, or unclassified areas to quantify
the increase of indirect emissions associated
with the proposed facility in the
environmental Information document and
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Federal Re lster / Vol. 45, No. 156 I Monday, August 11, 1980 / Rules and Regulations
53387
include provision. for the control and
mitigation of impacts in conformity with the
requirements of the SIP Failure of the grantee
to comply with this condition will result In
the grantee being Ineligible for subsequent
grant awards for that sewage treatment
works.
The population projections for
nonattainment areas on which the 1979 SIP
reVision is based are required to be
consistent with those submitted by the state
and approved by EPA In accordance with
EPA’s cost-effectiveness guidelines.’ When
the population projections from the 201/208
plan exceed the state or areawide projections
in the SIP by more than five percent. the
Regional Administrator shall choose one of
the following actions when considering step 2
and step 3 construction grant awards for
increased capacity where the inoreases will
exceed ten zngd:
a. Notify the governor to revise the SIP to
include reconciled population projections and
adequate control measures to attain the
NAAQS by the projected deadline and define
the specific steps needed to be accomplished
and the time by which they shall be
completed: or
b. Withhold those portions of step 2 and
step 3 construction grant awards for
increased capacity until the grant applicant
has adopted an adequate emissions
mitigation program. as outlined in sectionS.
When the state or areawide population
projections are inconsistent by more than five
percent and ills determined that the
increased indirect emissions associated with
the facility will not conform to the SIP’s
provisions for demonstrating RFP toward.
attainment of all NAAQS by the required
date, the Regional Administrator may
withhold step 2 and step 3 construction grant
awards for increased capacity In excess of
one mgd until the governor Is notified to
revise the SIP or the grant applicant adopts
an adequate mitigation program.
Pnor to the award of the aforementioned
step 2 and step 3 construction awards, the
Regiona! Admino ’ ’ito- shall venfy through
consuitation wit i the appiopriate state air
pollution control or designated local lead
agency or agencies for nonattainnient
planning that the increased indirect
emissions will not interfere with, or be
inconsistent with, the applicable SIP for any
other state When the Regional Administrator
finds that the Increased indirect emissions
associated with the construction of a sewage
treatment works will interfere with, or be
Inconsistent with, the applicable SIP for any
other state, those portions of the grant award
for increased capacity will be withheld until
the governor of the state In which the facility
will be located is notified to revise the SIP or
the applicant adopts an adequate mitigation
program.
Using data from the environmental
Information document, environmental Impact
statement or supplementary information
provided by the grant applleant. the Regloael
Administrator shall determine whether the
increased emissions associated with a
sewage treatment work. that will incseeee
capacity In excess of ten mgd in an
attainment or unulaasifled area will cause a
violation of any NAAQS. When the Regional
Administrator finds that the Increased
emissions will cause a standard violation.
those portions of the grant award for
increased capacity shall be withheld until:
a. The area that will be adversely impacted
by the Increased indirect emissions has been
redesignated a. a nonattainment area.
pursuant to section 107(d)(1) of the Clean Air
Act, and the Regional Administrator has
notified the governor to revise the SIP for that
area, In accordance with the requirements of
Part D of the Clean Air Act or
b. The grant applicant has adopted an
adequate emissions mitigation program, as
outlined In sectIon 3.
3. EmissIons Mitigation Program
Regulrementa
As provided by this policy, the award of
step 2 and step 3 construction grants may be
conditioned on the implementation of an
adequate emissions mitigation program. The
demonstration by the grant applicant that it
has adopted an adequate emissions
mitigation program shall be based upon the
following requirements:
a. Grantee commits to locally adopted
measures for emissions reduction through an
Intra-municipal or Inter-municipal agreement
These emissions mitigation measures may
previously have been Included In the facility
plan’s environmental assessment or
environmental impact statement.
b. Agreement Identifie . agencies
responsible for implementation of the
emissions mitigation program.
c. Agreement provides performance time
schedule for adopted mitigation measures
d. Agreement provides for continued
reporting by the grantee to EPA or the state
on the implementation of the adopted
mitigation measures.
e. Grantee has submitted the adopted
mitigation program to the state air pollution
control agency or designated local lead
agency and has requested revisions to the SIP
to Incorporate the mitigation program.’
IV. Allowable Construction Grants Program
Costs
Costs incurred by the grantee to perform
air quality analyses, facility planning and
design changes, and the planning for
mitigation measures, as required by the
provisions of this policy, are allowable
project costs and are reimbursable pursuant
to the regulations of the EPA construction
grants program. The control of direct
emissions from a sewage treatment works
will be an allowable cost provided It I.
within the scope of the project
Implementation costs for a program to
mitigate the Increased Indirect emisslonB
associated with the facility will not be
allowable costs.
V. Effective Date
In areas without approved or conditionally
approved SIPs all step 1, step 2 and step 3
construction grant awards issued after the
date of publication of this memomndusn in
the Federal Register shall be subject to the
provisions of this poflcy.
In areas with approved, conditionally
approved or promulgated SIPs all step I
construction grant awards issued after the
date of publioetion of this memorandum in
the Federal Register shall be subject to th
provisions of this policy. All step 2 and ate,
construction grant awards that are issued for
those areas shall be subject to the provisions
of this policy September 10, 1980.
Douglas M Costle,
Adminjaircitor, En vfronmentol Protect ion
Agency.
Memorandum Footnotes
‘Sewage treatment works include
treatment plants, interceptor sewers,
collection systems and other devices and
systems as defined in section 212 of the Clean
Water Act. as amended (Pub L 95—217).
‘Indirect emissions result from areawide
mobile and minor stationary source growth
that will potentially be induced by the
expanded sewage treatment capacity.
‘Grants for the construction of sewage
treatment work . are authonzed in section 201
of the Clean Water Act Under section 206(g)
of the Clean Water Act the EPA
AdmInistrator may delegate to each state the
administration of the sewage treatment
works construction grants program.
‘The requirements for the annual
demonstration of RFP are pursuant to section
171 of the Clean Air Act. The February 24,
1978 policy memorandum on the critena for
approval of the 1979 SIP revisions (43 FR
21675) provides guidance on the RFP
requirement. In addition, the general
preamble for proposed rulemaking on
approval of SIP revisions for nonattainment
areas (44 FR 20375) provides Further guidanr
on the use of schedules for the demonstraV
of RFP.
‘The policy and procedures for applying
federal assistance limitations in section
176(8) of the Clean Air Act appear In a March
19.1980 memorandum from the EPA
ABsistant Administrator for Air, Noise, and
Radiation and the Deputy Federal Highway
Administrator to the EPA Regional
Administrators and the Federal Highway
Regional AdmInistrators (45 FR 24692). The
imposition of any funding limitations,
pursuant to the provisions of this policy, will
not require coordination with the Federal
Highway Administration.
‘Earlier guidance on the use of uniform
population projections was provided in the
February 24, 1978 policy memorandum on the
criteria fcr approval of the 1979 SIP revisions
(43 FR 21674), the October 18, 1978 and
January 10, 1980 memorandums from the
Assistant Administrators for Air. Noise, and
Radiation and for Water and Waste
Management and the January 15, 1980
memorandum from the Assistant
Administrator for Air, Noise, and Radiation.
‘Modeling studies indicate that treatment
and/or collection capacity greater than one
mgd is the approximate minimum for creation
of significantly increased direct and indirect
emissions of critical air pollutants associated
with induced growth This critena is
equivalent to the proconstruction review
threahold for any facshty which emits or has
the poteatial to emit 100 tons per yeer or
more of any pollutant (44 PR 51924)
‘Local leed agencies are certified by the
governor pursuant to seotion 174 of the Clei.
Air Act and are reponeible for air quality
planning in areas where ozone and carbon
monoxide standards have not been attained.
3—14
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53388 Federal Register / Vol. 45, No. 158 I Monday, August ii, 1980 I Rules and Regulations
Atlac.hment A
&ct:on 316 Pt’icy Bac/. round
On lune 8. t t75 former EPA Administrator
Ruscell E I -.i.n issued a policy statement
requiring the c:i ‘deration of secondary
en’. ironnient .il t fci ta in the construction
grants process ‘Th’s policy requires that the
en’. ironmental re’. ew process For sewage
treatment works in , lude analyses of
secondary as ‘ .‘.ell as primary environmental
effects and indicate whether such effects may
contravcie any fedora), state, or local
en’. ironmentul la ’ . s. regulations, plans. or
s’,indards i.\ here contravention can
reasonably be anticipated, the policy
pro’.ides that the Regional Administrator
shall withhold approcal of a step 2 or step 3
cc.nsiruction grant until the applicant revises
the facility plan. m.Iiates steps to mitigate the
ad’. erse effects or agrees to conditions in the
gia ’ t document requiring actions to minimize
the effects
EPA policy established in 1978 provides
chat new set’. age collection systems are
eligiole for federal financial assistance only
in a community with substantial human
habitation c ii Octuber 18, 1972.2 The bulk of
the flow design capacii (generally two-
thirds) through the colection system is to be
for wustewaters originating from that eligible
community This policy places further
restriction on funding the construction of
collection systcms that would induce new
population growth and indirect growth of
emissions by requiring that the grant should
only be approved when the systems currently
in use for disposal of wastes from the existing
population are creating a public health
problem, contaminating groundwater. or
violating the point source discharge
standards
In September 1978 EPA established
guidelines (43 FR 44087) for determining the
most cost-effective waste treatment
management systems or corriponent parts.
The cost-etlectiteness analysis guidelines
require each state, working with 208 water
quai:ty planning agencies. local lead air
qual ty planning ri ’ onces, and other regional
p t an-i.ng ,i enc.es to disaggregate the state.
8ureau of Economic A alysis (SEA)
pnpula lion protections among its designated
208 areas, Standard Metro?olitan Statistical
Areas (S ’.!SAs) not incicded in the 208 area,
and non-SMSA counties Each state was
required to submtt its projection total and
di’.aggregattons for the Regional
Administrator’s approval before October 1.
l l79 After the state d’saggregations are
approved. 208 area wide agencies. in
consultation with the state, are required to
disa ,gregate the 208 area projections among
the SMSA and non SMSA areas The 208
,,ic,iv’.ide agencies rn _st then disaggregate
these SNISA and non SMSA prolectiona
iin.ong facility areas and remaining areas.
these disaggregaiions must be used in the
individual facility plans.
The cost-effectiveness guidelines
discourage the o’.’er.slzing of treatment
f,c.titicis by lowering the plonnirig estimate
fur per capita flow by 20—30 percent. A
grantee with a high flow growth factor in
exccess of 1 81 for the 20-year planning
pal iod must stuge the construction for 10
years.’ Future industrial flows are to be
accommodated only if the industry is
Included in the land use element of the 206
plan and may not exceed five percent of the
total design flow or 25 percent of the total
industrial flow. Grant applicants that propose
to include additional treatment capacity
beyond that amount determined to be cost-
effective in accordance with these guidelines
may receive federal financial assistance if,
among other requirements. the project can
ensure that air quality standards will not be
violated.
Interceptors are now limited by the cost-
effectiveness guidelines to a construction
staging period of 20 years. A larger pipe size
corresponding to a longer staging period, riot
to exceed 40 years. may be allowed if the
grantee can demonstrate compliance with all
pertinent requirements of the Clean Air Act.
The grantee must also demonstrate that the
larger pipe size will reduce overall
environmental impact.. including the
secondary effects on air quality. interceptors
may not be extended into undeveloped areas
unless there are exceptional circumstances
The EPA regulations implementing the
NEPA procedures require that the
environmental information document
prepared during the facility p’anntng phase
(step 1). and any subsequent environmental
impact statement (EIS). ‘ . ‘ .‘iU document the
treatment works’ effect upon local ambient
air quality caused by direct emissions or
induced development.’These regulations also
provide that the environmental tnlormation
document and the EIS will describe the steps
that have been taken to mitigate or eliminate
any significant adverse air quality effects
from the construction and operation of the
treatment works. Section 6 509(a) of the
revised regulations provides that a Facility
design (step 2) or a facility construction (step
3) grant shall not be awarded if the grantee
has not made, or agreed to make. peitinent
changes in the project to mitigate or eliminate
the significant adverse air quality effects.
Moreover, this regulation provides that step 2
or 3 grants will be conditioned to ensure that
the grantee will comply, or seek to obtain
pompliance with the mitigation requirements.
Attachment A Foonotes
‘EPA Construction Grants Program
Requirements Memorandum 75—28.
2 EPA Construction Grants Program
Requirements Memorandum 78—9.
‘The growth factor is defined as the ratio
of wastewater flow expected at the e’sd of
the 20-year planning period to the initial flow
at the time the treatment works is expected
to become operational.
4 Originally promulgated as 40 CFR 6.510(1)
on April 14, 1975. revised as 40 CFR
6 506(a)(6) on November 6. 1979.
Attachment B
Section 318 Policy Implementation
Responsibilities
I EPA Regional Administrators’
Kesponsibilities.
A. Condition step I and 8tep 2 grant
awards to ensure the use of sufficient air
pollution emissions control techniques.
B. Withhold step 3 grants for facilities with
incinerators until NESHAPS, PSD and state
air pollution permits are obtained.
C Withhold all construction grants in
nonattainznent areas where:
1. The SIP is not approved or conditionally
approved and the state is not making a good
faith effort to submit the SIP, or
2. The state is not making reasonable
further progress (RFP) towards attainment of
all NAAQS.
The withholding of any construction grants
would be done consistent with the Clean Air
Act (CAA) 176(a) procedures for
withholding transportation and air quality
funding. Those grants for projects which the
Regional Administrator (RA) finds are
needed for immediate public health needs
and would not expand capacity by more than
one mgd will not be withheld. Grants will not
be withheld for protects which improve
treatment capability without expanding
capacity for future growth.
0. CondItion the step 1 grant award to
include provisions in the facility plan that
quantify the increase of indirect emissions
associated with the proposed facility and
approaches to control and mitigate their
impacts. Withhold approval of the step 2
grant award until this condition has been
met.
E. Review SIPs and 201/208 plans to
determine the consistency of population
projections.
F. Notify states that the 1982 SIP revision is
to be based upon population projections
consistent with those prepared for 2131/208
plans, in accordance with the cost-
effectiveness guidelines.
C. Use CAA 105 and 175 grants and
state-EPA agreements to assure re’.ised SIP
and 201/208 population projections are
consistent within five percent by January 15,
1981.
H Notify the governor to ret ise the SIP
when the RA finds that the emissions control
measures in the 1979 SIP revision are
inadequate to attdtn the NAAQS in 1982. due
to SIP population projections ‘ . hich have
been reconciled upward
I In nonattainment areas. when SIP and
201/208 population projections are
inconsistent, withhold portions of step 2 and
step 3 grant awards for increased capacity
where the increase would exceed 10 rngd. or
I mgd when the RA also finds that the
increased emissions may endanger RFP. until
1. The governor is notified to revise the SIP
or
2. The grant applicant adopts an adequate
mitigation program.
J. Prior to the approval of step land step 3
grant awards identified pursuant to the
preceding requirement, consult with
appropriates tate and local air pollution
control agencies to verify that the increased
emissions associated with the fac.lity will not
interfere with, or be inconsistent with, the
applicable SIP for any other state Where the
increased emissions will violate the SIP of
another state withhold portions of the grant
award for increased capacity until.
I The governor is notified to revise the SIP.
or
2. The applicant adopts an adequate
mitigation programS
3—15
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Federal Register / Vol. 45, No. 158 / Monday, August 11, 1980 / Rules and Regulations 53389
K In attainment or unclassified areas,
determine whether the increased Indirect
emissions associated with a facility that
would expand capacity in excess of 10 mgd
will cause a violation of the NAAQS. Where
the increased emissions will cause a violation
of the NAAQS. withhold portions of the grant
award for increased capacity until:
1 EPA completes rulemaking to
redesignate the area as nonattainment and
notifies the governor to submit a Part D SIP
revision, or
2. The applic.ant adopts an adequate
mitigation program.
II. States’ Responsibilities:
A. Submit approval SIP and 208 plans.
B Submit disaggregated population
projections in accordance with the cost.
effectiveness guidelines.
C. Reconcile SIP and 201/208 population
projections by January 15, 1981.
D Use population projections approved in
accordance with the cost-effectiveness
guidelines as the basis for 1982 SIP revision.
E. When reconciliation of SIP and 201/208
population projections Invalidates projected
attainment of a NAAQS In 1982. revise SIP to
provide additional ei Isslons control
measures.
F Within nine months of a request by the
RA to accommodate the increased indirect
emissions associated with new sewage
treatment capacity, submit a SIP revision to
the Administrator.
C. When grantee submits adopted prolect
mitigation program, revise the SIP to
incorporate additional emissions control
measures.
H. Administer EPA delegated construction
grant program, consistent with the
requIrements of the policy.
ill Grant Applicants’ Responsibilities:
A During step 1. quantify the Increase of
direct and indirect emissions associated with
the proposed facility and include approaches
to control their Impacts in the environmental
information document and facility plan.
B When the 208 plan’s population
proiections have been revised downward to
reconcile with lower SiP population
prolections. make subsequent changes to the
facility plan’s population projections and to
the facility design.
C Dunng step 2, incorporate in the design
of a facility with an incinerator sufficient
control techniques to meet the federal NSPS,
NESHAPS. and PSD requirements. and state
emission standdrds contained in the SIP.
D. Prior to step 2 and step 3, If required by
the RA or the state, adopt a program to
mitigate the increased emissions from the
proposed facility.
E Submit the project mitigation program to
the state air pollution control agency or the
designated local lead agency for inclusion in
a SiP revision.
F Prior to step 3. obtaIn NESHAPS, PSD
and state air pollution permits, for facilities
with incinerators
C Provide continued reporting to EPA or
the slate on the implementation of the
adopted project mitigation program.
1F’R Doc. -24 l5 F,ied 5-8-Sli HS aml
Ba.LmG COOL 656O-OI-
3—16
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Coastal Zone
Management Act
N
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COASTAL ZOME MANAG 1EWT ACT
4.0 LEGISLATIVE/REGULATORY FRAMEWORK
4.0.1 Coastal Zone Manag uent Act
The Federal Coastal Zone Management Act (CZMA) of 1972
encourages states to develop comprehensive resource
management programs that balance the wise use and
protection of the coast. All of the states in Region I,
except for Vermont, are eligible to participate and all
have Federally—approved programs. All projects within
the coastal zone requiring Federal assistance or permits
must be consistent with the state’s coastal zone
management (CZM) program policies.
4.0.2 NOAA Regulations on Federal Consistency 115 CFR 930]
State coastal management agencies ensure Federal
compliance with state coastal policies through
“consistency procedures” established by the National
Oceanic and Atmospheric Administration. Essentially,
before a Federal agency can fund a project or grant a
permit in a state’s coastal zone, it must receive a
consistency determination from the state Office of
Coastal zone Management (CZM agency).
Projects are reviewed for their consistency in two
different ways. Applicants seeking Federal assistance
follow a state’s intergovernmental review (formerly A—95
review)* procedure to alert the State CZM agency and to
obtain a consistency determination from them.
Applicants seeking Federal permits, however, must
correspond directly with the State CZM agency to secure
a consistency determination [ 15 CFR 930.57]
On July 14, 1982, the President issued Executive Order 12372
rescinding A—95 and replacing it with new rules for State and
Federal Consultation [ 40 CFR 291 . These new rules, which were
effective October 1, 1983, encourage states to develop their own
clearinghouse procedures. EPA is in the process of developing
guidance for Implementation of 40 CFR 29 for the construction
grants program. For the present, projects which were in the A—95
review process as of October 1, 1983 should continue through that
process. New projects should follow the state—adopted
procedures. The EPA guidance document is expected to address the
case where no state program is adopted.
November 1983 4—1
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Although a consistency determination is not required
until an application is submitted for Federal assistance
or a permit, applicants and the State construction
grants agency are encouraged to consult with the State
CZM agency throughout facilities planning and design to
avoid conflict that may arise during the consistency
review process.
4.1 ENVRONM 1TAL REVIEW PROCEDURES UNDER 205(g)
The major steps for complying with the CZM consistency
requirements during 205(g) reviews are shown in Figure
4.1 and discussed below. As in previous chapters,
optional steps are shown by dashed lines.
4.1.1 Determination of Applicability (15 CFR 930 Subpart F]
The Federal CZM Act requires that all Federal assistance
applications for coastal projects receive a consistency
determination prior to any approval of funding;
consequently, the application must receive a consistency
determination or resolve any CZM agency objections
before EPA can grant Step 3 or a Step 2+3 funding.
As part of their Coastal zone Management plans, state
cz agencies have listed Federal activities which are
likely to directly affect the coastal zone regardless of
whether they are actually in the coastal zone. The
Grantee is encouraged to seek advice from the State
construction grants coordinator early in the planning
process to find out if his project is in the coastal
zone or is included on the list of activities likely to
directly affect the coastal zone and thus require a
consistency determination.
4.1.2 Basis for Consistency DeterminatiOn [ 15 CFR 930.39J
If it is determined that the facilities planning area is
in or is likely to affect the coastal zone, then the
Grantee must notify the state intergovernmental review
clearinghouse of the proposed plan. The Grantee is
responsible for providing sufficient information in this
notice for the CZM agency to make its determination. It
is therefore important that the Grantee include a
thorough coastal impact analysis as part of the EID.
At a minimum, the coastal analysis should include the
following:
4—2 November 1983
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AVAILABLE
DIGITALLY
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• a list and map of sensitive coastal resources within
the planning area (refer to the State Coastal Program
for a definition of sensitive coastal areas), and
• a review of impacts to these sensitive coastal areas
including proposed mitigation measures.
This information will serve as the basis for preparation
of the notice to the clearinghouse. The notice is to be
prepared by the Grantee.
It is strongly recommended that the Grantee and the State
201 agency consult with the State Czt4 agency during both
the planning and design phases. Prior consultation with
the State CZM office will often streamline the Grantee’s
literature reviews, coastal impact analysis and,
ultimately, the consistency review.
The 201 agency is responsible for reviewing the EID to be
sure sufficient information is present to allow the CZM
agency to determine consistency. If it is evident that
Federal permits (Section 404, Clean Water Act; Section 10,
River and Harbors Act) will be required to construct the
facility, the 201 agency should remind the Grantee to
apply during design for its permits and for the
consistency deteriTtination necessary for the permits.
The preliminary EA should summarize the information
presented in the EID on this subject and reference any
permit consistency determinations already obtained and
those still required.* The preliminary EA should also
discuss any comments received from the CZM agency. It
should be written, keeping in mind that this document may
be used by the CZM agency as a supplement to the
clearinghouse notice in making the Step 3 or Step 2+3
consistency determination.
Common examples of Federal permits required during the 201
process are a 404 Army Corps permit for sewer—related
construction affecting wetlands, or a National Pollution
Discharge Elimination System (NPDES) permit, required for
effluent disposal. It is the applicant’s responsibility to
notify the State CZM agency of the proposed action. In turn, the
State CZM agency responds directly to the applicant concerning
the consistency certification and resolution of minor
conflicts. Major conflicts are mediated as described below.
Procedures for reviewing permits vary considerably from state to
state.
November 1983
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4 1.3 Notification of CZM [ 15 CFR 930.95]
For purposes of obtaining the consistency determination, the
State CZM agency should be officially notified of the project
through the State’s interagency review process approximately 3
months prior to submittal of the Step 3 or Step 2+3 grant
application.
The State construction grants agency is responsible for making
certain that the clearinghouse notice clearly states that the
proposed project is within the coastal zone, and is believed
to be consistent with the state’s CZM plan.
The notice should list any sensitive coastal areas (e.g.
wetlands, finfish migratorial pathways) that are known to
exist within the project planning area. It should also make
note of any impact analyses that have been done in support of
the Grantee’s and State’s statement of consistency.
4.1.4 CZM Agency Review (15 CFR 930.96]
When a State CZM agency receives notification of a project
requesting Federal assistance, the agency evaluates the
consistency of the proposal with state CZM policies and may
respond in one of the following four ways:
• no comment (presumed to mean no objection),
• support the project (project is consistent),
• object to the project because of inconsistency, or
• object to the project due to insufficient information.
When a CZM office chooses to comment, the response is gen-
erally in the form of a letter or memo, citing applicable
coastal policies. This response is then transmitted back to
the applicant through the clearinghouse. In the event of an
objection, the CZM agency’s statement must describe how the
project is inconsistent with elements of the CZM program and
recommended modifications that would eliminate the
inconsistencies [ 15 CFR 930.96] . Objections based on
insufficient information must include a description of the
information necessary to complete the review. Applicants may
choose to accept suggestions of the State CZM agency and
revise the project or, if so direct, supplement the previously
deficient information. If there is serious disagreement,
between CZM and other State, Federal and municipal agencies,
Grantees may request mediation by the Secretary of Commerce
[ 15 CFR 930, Subpart C]
4—6 November 1983
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4.1.5 EPA Responsibility (15 CFR 930 .971
If the CZM agency determines that the project is consistent
with the state CZM policies and all Federal permits are
approved, then EPA may award the Step 3 grant. If, however,
the CZM agency objects to the project and EPA concurs with
CZM’s objections, EPA will not award a Step 3 grant. In the
event that the CZM agency objects to the project but EPA does
not agree, then EPA can request mediation through the
Secretary of Commerce or through judicial means.
4.2 CONTACTS
4.2.1 Federal Agencies
Kathryn Cousins or 202—634—4126
Doris Grimm
The United States Department of Commerce
Office of Coastal zone Management
3300 Whitehaven Street, NW
Washington, DC 20235
4.2.2 State Agencies
The following state agencies are responsible for managing
their state coastal programs
CONNECTICUT (approved)
Arthur Rocque, Director 203—566—7404
Coastal Area Management Program
Department of Environmental Protection
71 Capitol Avenue
Hartford, CT 06115
MAINE (approved)
David Keeley 207—289—3154
Coastal Program Manager
State Planning Office
State House Station 38
Augusta, ME 04333
MASSACHUSETTS (approved)
Richard F. Delaney 617—727—9530
Coastal Zone Management
100 Cambridge Street
Boston, MA 02202
November 1983 47
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NEW HAMPSHIRE (Ocean segment approved)
Peter Piattoni, Program Manager 603-271—2155
Coastal Management Program
Office of State Planning
2 1/2 Beacon Street
Concord, NH 03301
RHODE ISLAND (approved)
Malcom J. Grant, Assistant Director 401—277—2771
Dept. of Environmental Management
83 Park Street
Providence, RI 02908
4.3 REFKR JC
The Coastal Zone Management Act of 1972 , 16 U.S.C. 1451 and
subsequent additions.
USEPA. “Intergovernmental Review of Environmental Protection
Agency Programs and Activities,” 40 CFR 29, Federal Register ,
Vol. 48, No. 123, June 24, 1983, 29300—29303.
USEPA, Office of Water. Memorandum from Henry L. Longest to
Water Management Division Directors, Regions I—X on
Supplemental Guidance to Implement Intergovernmental Review
Under Executive Order 12372 and 40 CFR Part 29 for the
Construction Grants Program, October 5, 1983.
NOAA. “Regulations on Federal Consistency with Approved
Coastal Management Programs,” Code of Federal Regulations ,
Title 15, Part 930.
4—8 November 1983
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Coastal Barrier
Resources Act
C,
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COASTAL BARRIER RESOU ACT
5.0 LEGISLATIVE/REGULATORY FRAMEWORK
5.0.1 Coastal Barrier Resources Act
The Coastal Barrier Resources Act of 1982 (CBRA) (P.L.
97—348] establishes the Coastal Barrier Resources System
(CBRS) and restricts future Federal expenditures and
financial assistance which have the effect of
encouraging development on undeveloped coastal
barriers. The Act potentially applies to Federal
projects in all states in EPA Region I except Vermont.
Section 3(1) of the Act defines an “undeveloped coastal
barrier” as a depositional geologic feature such as a
barrier island plus all related aquatic habitats,
provided that they contain few manmade structures and
are not already protected by another Federal, State or
local law.
The CBRS is estabished under Section 4(a) of the Act.
The system is defined as the undeveloped coastal
barriers of the Atlantic and Gulf coasts (known as units
of the system) which are depicted in a series of maps
entitled Coastal Barrier Resources System, prepared by
the U.S. Fish and Wildlife Service (see
Attachment 5—1). At present, CBRS units have been
designated in Connecticut, Maine, Massachusetts and
Rhode Island.
Section 4(c) of the Act provides for periodic review and
modification of the maps. These completely supersede
and replace the draft or proposed maps previously
circulated by the Department of Interior under
provisions of the Omnibus Budget Relocation Act of 1981.
Section 5 of CBRA prohibits expenditures of most new
Federal financial assistance within the CBRS units.
Section 6 provides for a number of exceptions which may
be funded after consultation with the Secretary of the
Interior. The exceptions are for projects which involve
conservation, public recreation, scientific research,
air and water navigation, national security, energy
development, general revenue sharing grants to the
states, and maintenance of existing public facilities.
November 1983 51
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5.0.2 U.S. Department of the Interior Advisory Guidelines
148 FR 45664]
Advisory Guidelines for the Coastal Barrier Resources
Act were issued by the Department of the Interior (DOl)
on October 6, 1983. The guidelines identify the
Environmental Protection Agency’s 201 and 208 grants
programs as included under the Act. The guidelines
indicate that “publicly owned utilities”, which includes
sewers and related wastewater management systems, fall
within the definition of “publicly owned or operated
structures and facilities” which are eligible to be
considered for an exception to the Act.
The guidelines encourage Federal agencies to contact the
DOl consultation officer for clarification on the
applicability of specific projects to the allowed
exceptions and to establish consultation procedures. If
formal consultation is required, the Secretary of
Interior’s responsibility is to provide technical
information and comments on the question of consistency
with CBRA. These should be provided through direct
consultation with the Regional Director of the Fish and
Wildlife Service. The guidelines also provide that the
results of any consultation be included in the
appropriate environmental document.
5.0.3 U. . Environmental Protection Agency Memorandum on
Coastal Barrier Resources Act — Restriction on Grant
Awards
The Environmental Protection Agency’s policy regarding
the administration of projects to which CBRA applies is
a March 18, 1983 Memorandum from the Office of Water to
the Regional Administrators (see Attachment 5—2).
This memorandum, which was issued prior to the DOl
guidelines, assumes that certain construction grants
projects would be eligible for exceptions to the CBRA
restrictions. The memo summarizes the general purposes,
requirements, and conditions of the Act and interprets
them for the administrators of the Construction Grants
program.
The memorandum specifically interprets the restriction
on funding programs which would have secondary impacts
on the CBRS. “...The Act prohibits the award of a grant
for capacity in a treatment plant or conveyance outside
of the delineated areas which would have the effect of
encouraging development in the delineated areas.”
5—2 November 1983
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5.0.4 State Programs
In addition to the Federal Coastal Barrier Resources
Act, Rhode Island, Maine and Massachusetts have State
requirements which govern development on barrier beaches
and other coastal resources and which must be addressed
in the EID. These State requirements may be more
stringent or may apply to a greater number of coastal
areas than CBRA.
5,1 ENVIRONM TAL REVIEW UNDER 205 (g)
The recommended steps for complying with the Coastal
Barrier Resources Act during a 205(g) review are shown
in Figure 5.1. The initial reviews and determinations
would be carried out most practically at the beginning
of the project planning or throughout the early stages
of the formal Facilities Planning effort.
5.1.1 Applicability of the Act
For any project in or near a coastal area, it is
recommended that the Grantee contact the State Coastal
zone Management agency to determine the presence of a
CBRS unit in the study area. If none exists, then the
Act does not apply. If part or all of the project is
located in a unit of the system, or has the capacity to
serve development within a CBRS unit, the Act is
applicable.
The Grantee should include the results of any
preliminary State consultation in the Environmental
Information Document.
5.1.2 &pplicability of Exception to the Act
Based on the Final Guidelines issued by DOl, it would be
possible for certain wastewater management projects to
qualify for an exemption to the Act. Once it is
determined that the project falls within an area
protected by CBRA, the State and Grantee are advised to
consult the EPA regional office if they believe that the
project will qualify as an exception under Section 6 of
the Act.
Two of the six exceptions identified in the Act may
apply to certain wastewater Construction Grants
projects. Section 6 (a) (3) allows for the “maintenance,
replacement, reconstruction or repair but not expansion,
of publlcly—owned...facilities that are essential links
in a larger network...”. Section 6(a)(6)(F) allows for
the “maintenance, replacement, reconstruction Ot repair
November 1983 53
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but not expansion,of publicly—owned...facilities”
provided that the action is consistent with the purposes
of the Act.
It is anticipated that one or both of these provisions
would allow funding for a project to repair old or
damaged wastewater collection facilities located in or
near a unit of the CBRS if the existing facilities were
the cause of water quality degradation. Deteriorated
wastewater treatment facilities may qualify also, but it
is unlikely that there are any existing wastewater
treatment plants located within the CBRS.
No project which would expand the size or capacity of a
wastewater collection system or treatment plant, and no
project which would encourage development on a CBRS
unit(s) would be eligible for an exception under the
Act. This latter restriction applies even to projects
located outside a CBRS unit.
5.1.3 Consultation Process
If the EPA determines that the project is not eligible
for an exception to the Act, then the Grantee has art
opportunity to modify the project to meet the
requirements of the Act.
If EPA concurs on the eligibility for exception to the
Act, EPA must consult with the Regional Director of the
U.S. Fish and Wildlife Service (FWS) before awarding a
grant. According to the guidelines issued on October 6,
1983, FWS will provide technical information and issue
an opinion on whether or not the project is one which is
allowed by Section 6. Under the guidelines, the FWS
opinion is advisory only and EPA will have final
responsibility for the decision on funding the project.
Also in accordance with the October 6 guidelines, the
results of the FWS consultation should be included in
the Environmental Assessment on the project.
5—4 November 1983
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5.2 CONTACTS
5.2.1 Federal Agencies
For consultations and inspection of CBRS maps and aerial
photographs:
Assistant Regional Director— 617—965—5100
Habitat Resources x92 17
U.S. Fish and Wildlife Service
One Gateway Center
Newton Corner, MA 02158
Frank McGilvrey, 202—343-5000
Consultation Officer
U.S. Fish and Wildlife Service
U.S. Department of the Interior
Washington, DC 20240
For purchase of maps ($3.25 each, 36” x 42”), and
information regarding purchase of 1:24,000 aerial
photog r aphy:
Eastern — National Cartographic 703—860—8336
Information Center
U.S. Geological Survey
536 National Center
Reston, VA 22092
For inspection of CBRS maps, Regional Fish and Wildlife
offices:
ALL UNITS
U.S. Fish and Wildlife Service 617—965—5100
One Gateway Center, Suite 700
Newton Corner, MA 02158
CONNECTICUT, MAINE, MASSACHUSETTS,
RHODE ISLAND
US. Fish and Wildlife Service 603—224—2585
P.O. Box 1518
Concord, NH 03301
CONNEC TI CUT, RHODE ISLAND
Don Tiller, Refuge Manager 401—364—3106
Trustom Pond National Wildlife Refuge
Box 307
Charlestown, RI 02813
November 1983 57
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MAINE
Douglas M. Mullen, Refuge Manager 207—454—3521
Moosehorn National Wildlife Refuge
Box X
Calais, ME 04619
MAINE
Maurice Mills, Jr., Refuge Manager 207—646—2996
Rachael Carson National Wildlife Refuge
Route 2, Box 98
Wells, ME 04090
MASSACHUSETTS
George W. Gavutis, Refuge Manager 617—465-5753
Parker River National Wildlife Refuge
Northern Boulevard
Plum Island
Newburyport, MA 01950
5.2.2 State Agencies
CBRS maps may also be available for review at offices of
Coastal Zone Management Agencies listed in Chapter 4 on
the CZM Act.
5.3 REFER C
The Coastal Barrier Resources Act , 16 U.S.C. 3501.
USEPA, Office of Water. Memorandum from Frederick A.
Eidsness, Jr. to Regional Administrators, Regions I—IV,
VI, IX and X on the subject of Coastal Barrier Resources
Act — Restriction on Grant Awards, March 18, 1983.
USD01, Fish and Wildlife Service. “Coastal Barrier
Resources Act; Advisory Guidelines,” 43 CFR Subtitle A,
Federal Register , Vol. 48, No. 195, October 6, 1983,
45664—45668.
5—8 November 1983
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ATTACEM T 5-1 - LISTING OF CBRS UNITS, EPA REGION I
Map Number(s) and Unit Names(s)
MAINE (12 maps)
AOl Lubec Barriers
AO1A Baileys Mistake
A03 Jasper
AO3B Starboard
AO3C Popplestone Beach/Rogue Island
AO5A Seven Hundred Acre Island
AO5B Head Beach
AO5C Jenks Landing/Waldo Point
A06 Cape Elizabeth
A07 Scarborough Beach
A08 Crescent Surf
A09 Seapoint
MASSACHUSETTS (39 maps)
COO Clark Pond
Cal Wingaersheek
CO1A/CO1B Good Harbor Beach and Brace Cove
CO1C West Head Beach
C02 North Scituate
C03 Rivermoor
CO3A Rexhame
C04 Plymouth Bay
C06 Center Hill Complex
COB Scorton
C09 Sandy Neck
Cia Freemans Pond
Cli Namskaket Spits
C1].A Boat Meadow
C12 Chatham Roads
C13 Lewis Bay
C14 Squaw Island
C15/C16 Centerville and Dead Neck
C17 Popponessett Spit
C18/C18A Waquoit Bay and Fairnouth Ponds
C19 Black Beach
C19A Buzzards Bay Complex Sheet 1 of 2
C19h Buzzards Bay Complex Sheets 2 of 2
C20 Coatue
C21 Sesachacha Pond
C22 Cisco Beach
C23/C24 Esther Island Complex and Tuckernuck Island
C25 Muskeget Island
C26 Eel Pond Beach
C27 Cape Poge
C28 South Beach
C29 Squibnocket Complex
November 1983 59
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C29/C29B James Pond and Mink Meadows
C31 Elizabeth Islands
C31A West Sconticut Neck
C31B Harbor View
C32 Mishaum Point
C33/C34 Little Beach and Horseneck Beach
C34A Cedar Cove
RHODE ISLAND (9 maps)
DOl Little Compton ponds
D02 Fogland Marsh
DO2B Prudence Island Complex
DO2C West Narragansett Bay Complex
D03/D04/D05 Card Ponds, Green Hill Beach and East Beach
D06 Quonochontaug Beach
D07 Maschaug ponds
D08 Napatree
C09 Block Island
CONNECTICUT (8 maps)
EO]J EO1A Wilcox Beach and Rain Island
E02, E03, EO3A Goshen Cove, Jordon Cove and Niantic Bay
EO3B Lynde point
E04 Menunketesuck Island
E05 Hammonassett Point
E07 Milford Point
EO8A Fayerweather Island
E09 Norwalk Islands
Source: Federal Register, November 19, 1982
5—10 November 1983
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ATTACHMENT 5-2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 1 8 1983
OFFICE OF
WATER
N EMORAN DUll
SUBJECT: stal Barrier Resources Act — Restriction on Grant Awards
FROM: ric A. Lldsness, Jr., Assistant Administrator
for Water (WH-556)
TO: Regional Administrators
Regions l-IV, VI, IX and X
ATTN: Water Management Division Directors
President Reagan signed the Coastal Barrier Resources Act (P.1. 97-348)
into law on October 18, 1982.
This Act (copy attached) restricts new federal expenditures and
financial assistance which have the effect of encouraging development on
undeveloped coastal barriers within the Coastal Barrier Resources System.
The tenn financial assistance includes grants for the construction of any
wastewater treatment facility or related infrastructure. The Coastal
Barrier Resources System consists of undeveloped coastal barriers located in
the Atlantic and Gulf coasts of the United States. The system Includes
depositional geologic features, such as barrier islands and related areas
containing few man-made structures. The areas included in the system are
shown on maps discussed below.
The Act generally prohibits new federal expenditures or new federal
financial assistance for construction within the Coastal Barrier Resources
System on or after October 18, 1982. Specified exceptions to this
prohibition are available after consultation with the Secretary of the
Interior. The exception relevant to the construction grants program allows
funding for projects for the maintenance, replacement, reconstruction, or
repair, but not expansion, of publicly owned or publicly operated structures
or facilities, provided they meet one of two conditions. Specifically, the
projects must either be an essential link In a larger network or system or
be consistent with the purposes of the Act.
For the construction grants program, an expenditure is not a new
expenditure if a grant award was made before October 18, 1982, the date of
enactment.
5—11
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2
In addition to restricting grant awards for funding construction of
facilities within the Barrier Resources System, the Act prohibits the award
of a grant for capacity in a treatment plant or conveyance outside of the
delineated areas which would have the effect of encouraging development in
the delineated areas.
Maps delineating the locations where grants for facilities may not be
awarded are available from Department of Interior. Advance copies of the
maps were sent to you in December. A description of the method initially
used to develop the maps, and a listing of the maps were published in the
Federal Registers of August 16, 1982 (47 FR 35696-35715), and November 19,
1982 (47FR 52388-52393).
Copies of maps have been sent to the Regional Environmental Impact
Statement (EIS) coordinators. Coments on the maps will be transmitted to
the Department of Interior for their use In determining whether minor and
technical changes to system boundaries are warranted. Additionally, an EIS,
being prepared on the development of the maps, is expected to be circulated
to each coastal Region for review. Each Atlantic and Gulf coast Region or
delegated State should use the maps and EIS to identify and review pending
applications for Step 3 or Step 2+3 grants and all grant awards made on or
after October 18, 1982 to insure consistency with the provisions of this
Act.
If you have questions on how this Act affects a particular project you
should first contact your Regional Counsel’s Office. Headquarter’s points
of contact are William Kramer of the Facility Requirements Division, FTS
382-7277 and Howard Corcoran, Office of General Counsel, FTS 382-5320.
Attachment
cc: R. Perry
P. Cahill
5—12
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Endangered Species Act
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ENDANGERED SPECIES ACT
6 • 0 LEGISLATIVE/REGULATORY FRAMEWORK
6.0.1 Endangered Species Act
The Endangered Species Act of 1973, amended to October
1982, provides a means of conserving species of fish,
wildlife and plants which are threatened with extinction
and the ecosystems upon which these species depend.
The Act requires the Secretary of the Interior to
research the status of various species and designate a
species as endangered or threatened where such desig-
nation is warranted. Designated species are put on a
formal list, which also identifies the range where the
species is endangered or threatened and any critical
habitat within such range.
The Fish and wildlife Service (FWS) has jurisdiction and
responsibility for terrestrial and freshwater species on
the list. The National Marine Fisheries Service (NMFS)
has jurisdiction and responsibility for the marine
species on the list. Species may be removed from the
list when the Secretary of Interior and the Secretary of
Commerce determine that the species is no longer endan-
gered. The list of species is published periodically in
the Federal Register. The current publication is dated
July 27, 1983.
Species included on the list which may be found in
Region I include:
Terrestrial Wildlife
Gray Wolf Canis lupus
Eastern Cougar Felis concolor cougar
Indiana Bat Myotis sodalis
Plymouth Red— Chrysemys rubriventris
bellied Turtle bangsi (Massachusetts)
. Birds
Bald Eagle Halioeetus leucocephulus
Peregrine Falcon Falco peregrinus anatum
and Falco peregrinus
tundrius
November 1983 6—1
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• Marine Species
Short Nose Sturgeon Acipenser breviros rum
Whales (8 species)
Sea Turtles (4 species)
• Plants
Furbish Lousewort Pedicularis furbishiae
(Maine)
Small Whorled Isotria medeoloicies
Pogonia
Robbins Cinquefoil Potentilla robbinsiana
(New Hampshire, Vermont)
Section 7(a) of the Act requires Federal agencies such
as EPA to ensure that actions they authorize, fund or
carry out are not likely to jeopardize the continued
existence of endangered or threatened species or ad-
versely modify or destroy the critical habitats of such
species. Actions which might jeopardize listed species
have been interpreted to include direct and indirect
effects, together with the cumulative effects of other
actions which are interrelated with, or interdependent
on, the proposed action.
If listed species or their habitat are believed to be
present within the area of the proposed action, informal
consultation between the Federal agency acting on the
project and the appropriate wildlife agency must be
undertaken. The purpose of this consultation is to find
out whether or not the project will be “likely to jeop-
ardize the continued existence of any endangered or
threatened species or result in the destruction or
adverse modification of critical habitat.”
Section 7 of the Act was amended in November 1978 to
require specific consultation procedures as follows:
• request for information from the Secretary of
Commerce and/or Interior,
• preparation of a Biological Assessment by the
Federal agency advocating the proposed action,
• formal consultation between the Federal agency and
the Secretary of Commerce and/or Interior,
issuance of an opinion by the appropriate Secretary
as to the likelihood of jeopardy by the proposed
action to the continued existence of the species or
its critical habitat.
6—2 November 1983
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A description of the elements of each of these proced-
ures is included in Attachment 6—1.
Section 7(c) of the Act provides that the Biological
Assessment may be undertaken as part of the Federal
agency’s compliance with NEPA.
Section 7(d) of the Act provides that, after initiation
of the consultation process, the Federal agency and the
applicant shall make no irreversible or irretrievable
commitment of resources which has the effect of fore-
closing the formulation or implementation of any reason-
able and prudent alternatives which would not violate
Section 7(a).
Section 7 (h) of the Act provides for exemptions from the
Act only if an appointed Endangered Species Committee
finds that:
• there are no reasonable and prudent alternatives to
the agency action,
• the benefits clearly outweigh the benefits of
alternative actions consistent with the Act, and
• the action is of regional or national significance.
6.0.2 PWS/NMFS Interagency Cooperation Regulations
Prior to the November 1978 amendments, Section 7 con-
sisted of one brief paragraph requiring consultation
between the Secretary of Commerce and/or Interior and
other Federal agencies. In order to implement the con-
sultation requirements, NMFS and FWS published regula-
tions on January 4, 1978 outlining consultation pro-
cedures (40 CFR 402). While these regulations are tech-
nically still in effect, they are no longer completely
appropriate because of the more specific procedural
requirements of the Novmber 1978 amendments. In addi-
tion, the January 1978 regulations set forth a defini-
tion for “critical habitat” which was substantially
modified by the November 1978 amendments to the Act.
In response to the 1978 amendments, NMFS and FWS have
been drafting new regulations and have recently pub-
lished a Proposed Rule in the Federal Register (June 29,
1983) for interagency cooperation procedures to imple-
ment Section 7 as amended.
November 1983 6—3
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The Proposed Rule does not change the basic elements of
the consultation procedure identified in 50 CFR 402, but
provides more detail on the specific nature of each
element and on the time frame in which it must be
carried out.
The major departure of the proposed regulations from the
procedures set forth in the amended Act itself is that
the regulations try to set a threshold before requiring
the formal consultation in the form of Request for
Information and the Biological Assessment (thus, this
procedure would only be required for major projects
which may have an adverse effect. For other projects,
the burden of decisions/compliance would be placed on
the individual agency but FWS/NMFS would still have an
opportunity to step in on any project at any time if
they felt the agency did not properly consider endan-
gered species).
Until such time as these pending regulations are promul-
gated, EPA will follow the procedures set forth in the
amended Act itself.
6.0.3 State Programs
In addition to the Federal endangered species program,
many states have endangered species programs of their
own and maintain lists of those species endangered or
threatened within the state.
Actions affecting these species and their habitat are
not subject to the Federal Endangered Species Act unless
the species are proposed for inclusion on the Federal
list. They are, however, subject to NEPA and to the
Fish and Wildlife Coordination Act and to any applicable
state laws or regulations.
6.1 VIRO! (ENTAL REVIEW PROCEDURES UNDER 205 (g)
The major steps for complying with the Endangered
Species Act during a 205(g) review are shown in
Figure 6.1. The flow of activities shown in the figure
represent the order of activities, based on the require-
ments of the Act and 50 CFR 402, that are currently in
general use. Some of the initial steps are optional and
are shown by dashed lines.
6—4 November 1983
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6.1.1 Deterlaining the Need for a Biological Asses nent
Section 7(c) of the Act requires EPA to request
information from the Secretaries of Interior and
Commerce on whether any species which is listed or
proposed to be listed may be present in the area of the
proposed action. Since the required studies and
consultation procedures may take in excess of 12 months,
if such species are found to be present, the Grantee is
advised to discuss the potential applicability of the
Endangered Species Act with the State project
coordinator during the initial stages of the facilities
planning process.
The State project coordinator may consult with the State
Fish and Wildlife staff who should be able to advise the
project coordinator and the Grantee as to the
designation of any state or Federal endangered or
threatened species or critical habitat within the study
area.
While the Grantee may have access to a current list
himself, it is important that the state Fish and
Wildlife agency be contacted, as the list published in
the Federal Register may not contain sufficient detail
about the species or its critical habitat for site
specific analysis.
If a species on the state list is present in the area,
the State should advise the Grantee as to the procedures
to follow to meet state requirements. The presence of
state listed species and project impacts on those
species should be addressed in the EID.
If the State Fish and Wildlife staff advise that Federal
endangered species or their critical habitat are listed
within the study area, then the State and/or the Grantee
are advised to contact EPA during preparation of the
Facilities Plan. They should ask that EPA request
information on the presence of species from the
Secretaries of Commerce and Interior through the NMFS
and the FWS, respectively.
EPA must write all letters to FWS or NMFS because, under
the present regulations, EPA cannot delegate the
responsibility for compliance with this Act. The FWS
and/or NMFS must respond within 30 days.
If the FWS and NMFS respond that there are no endangered
species present, then neither the EPA nor the Grantee
need take further action on the issue. The results of
November 1983 6—7
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their communication with NMFS and/or FWS should be
included in the EID.
If FWS and/or NMFS respond that an endangered species
may be present, then a Biological Assessment will be
required.
The appropriate Federal wildlife service will, to the
extent their manpower permits, assist the Grantee, State
and EPA in the scoping of the assessment.
6.1.2 Biological Assessment
The purpose of the Biological Assessment is to determine
if listed species or critical habitat actually are
present and, if so, to what degree, they are likely to
be affected by the proposed project (see Attachment
6—1).
When a Biological Assessment is necessary, it must be
completed within 180 days of EPA’s receipt of
notification from NMFS or FWS unless the agencies agree
to an extension. The Biological Assessment would
usually be prepared by the Grantee and reviewed by the
State initially. It should be submitted to EPA for
review within the 180 day period. EPA will then submit
the Biological Assessment to FWS or NMFS for review.
The FWS or NMFS may find the document inadequate and
request additional information. Once the FWS or NMFS
find the Biological Assessment to be adequate, the State
should include it with the preliminary EA.
If the Biological Assessment indicates that either the
listed species or their critical habitat may be
affected, then EPA must request formal consultation with
NMFS and/or FWS. Again, this request must come from EPA
in writing and cannot be delegated.
6.1.3 Formal Consultation
The formal consultation process consists of an exam-
ination by NMFS and FWS of the Biological Assessment and
any other available scientific information related to
the species in question. It may also include on—site
inspection.
The examination must be concluded within 90 days except,
in the case of approval of a permit or license during
design, the agencies and the Grantee may agree on a
longer period.
6—8 November 1983
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At the end of the examination the Director(s) or
Regional Director(s) of NMPS and/or FWS must submit to
EPA a Biological Opinion detailing how the agency action
affects the species or its critical habitat. The
opinion must include a summary of the information upon
which it is based and any recommended mitigating
measures. If the opinion is that the action would
jeopardize the continued existence of the species, then
the opinion must suggest reasonable and prudent
alternatives which the Director believes would not
violate the Endangered Species Act.
After receipt of the Biological Opinion it is EPA’S
responsibility to determine whether to proceed with the
action in light of its obligations under the Act.
A finding that endangered species are present and may be
affected could also cause EPA to require an EIS at this
point, pursuant to the criteria of 40 CFR 6.508(a) (3).
6.1.4 RID Review and Preparation of Preliminary RA by State
The State should be sure that the approved Biological
Assessment has been Incorporated into the EID and any
mitigating measures recommended by it, FWS or NMFS have
been or will be incorporated into the project. The
preliminary EA should discuss the findings of the
assessment and, if consultation was undertaken, the
findings of the Biological Opinion.
6.1.5 EPA Review
Where the preliminary EA shows that there are no
endangered or threatened species present or that the
project will not adversely affect those that are
present, EPA can issue a FNSI. Where a Biological
Opinion has stated that a project “is likely to
jeopardize” a species, EPA will not be able to fund the
project unless an exemption to the Act is granted. It
is more likely that this situation would result in
additional facilities planning (probably with a
concurrent EIS) to try to develop a solution which would
not harm the species.
November 1983 6—9
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6.2 CONTACTS
6.2.1 Federal Agencies
Paul Nickerson 617—926—9316
U.S. Fish and Wildlife Service
Region S — One Gateway Center
Newton, MA 02158
Douglas Beach 617—281—3600
National Marine Fisheries Service
14 Elm Street
Gloucester, MA 01930
6.2.2 State Agencies
The following state agencies should be able to provide
assistance in assessing impacts on endangered species
and information on whether the state has an endangered
species program and list of its own.
CONNECTI CUT
Fauna and Flora:
Leslie Mehroff 203—486—3266
Division of Natural Resources
Department of Environmental Protection
U—42 University of Connecticut
Storrs, Connecticut 06268
MAINE
Fauna:
Robert W. Boettger, Chief or 207—289—3651
Lee Perry, Assistant Chief
Wildlife Division
Inland Fisheries Wildlife Department
284 State Street
Augusta, Maine 04333
MASSACHUSETTS
Fauna:
Chet McCord, Chief 617—366—4470
Wildlife Research, Division of
Fisheries and Wildlife
Field Headquarters
Westboro, MA 01581
Brad Blodget, Chief of Non—Game 617—727—3151
Massachusetts Division of Fisheries
and Wildlife
100 Cambridge Street
Boston, MA 02202
6—10 November 1983
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NEW HAMPSHIRE
Fauna:
Howard C. Nowell, Jr 603—271—3551
Chief, Game Management and Research
or
Harold P. Nevers 603—271—2774
Federal Aid and Endangered Species
Project Coordinator
Fish and Game Department
34 Bridge Street
Concord, NH 03301
Flora:
Howard Townsend 603—271—3551
Cornmiss ioner
New Hampshire Department of Agriculture
Park Plaza
85 Manchester Street
Concord, NH 03301
RHODE ISLAND
Fauna:
John M. Croanan, Chief 401—789—3094
Division of Fish and Wildlife
Department of Environmental Management
Washington County Government Center
Tower Hill Road
Wakefield, RI 02879
Flora:
James Chadwick 401—789—3094
Deputy Chief of Wildlife
Division of Fish and Wildlife
Department of Environmental Management
Washington County Government Center
Tower Hill Road
Wakefield, RI 02879
VERMONT
Fauna:
James D. Steward 802—828—3371
Fish and Game Coordinator
Fish and Game Department
State Office Building
Montpelier, Vermont 05602
November 1983 611
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6.3
Flora:
Charles Johnson
State Naturalist
Agency of Environmental Conservation
Department of Forests, Parks and Recreation
79 River Street
Montpelier, Vermont 05602
EEFER 4CES
802—828—3375
The Endangered Species Act of 1973 , 16 U.S.C. 1531.
USD01, Fish and Wildlife
Marine Fisheries Service.
Endangered Species Act of
Regulations , Title 40, Part
43 FR 874, January 4, 1978).
USD01, Fish and Wildlife
Lists of Endangered and
Federal Register , Vol.
34182—34196.
Service and USDOC, National
“Interagency Cooperation —
1973,” Code of Federal
____________ 402, 377—380. (Source:
USD01, Fish and Wildlife Service and USDOC, National
Marine Fisheries Service. “Interagency Cooperation;
Endangered Species Act of 1973”, Proposed Rule, Federal
Register , Vol. 48, No. 146, June 29, 1983, 29990—30004.
Service. “Republication of the
Threatened Species,” 50 CFR 17,
48, No. 145, July 27, 1983,
6—12
November 1983
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APTACEM 1T 6-1
Biological Assessment (as described in the proposed rule
published June 29, 1979)
purpose to assist agency in determining whether formal
consultation necessary
180 days to complete
informal assistance from FWS and NMFS in scoping
study shall include:
determination of which species or habitat are
present in the action area
evaluation of potential impacts on species or
habitat
evaluation of cumulative effects on species or
habitat
report shall be forwarded to director of applicable FWS
or NMFS office for review (review comments within 30
days if director disagrees with findings).
Consultation
initiated by letter to FWS or NMFS formally requesting
consultation
after request, no irreversible or irretrievable commit-
ments to the project are allowed until process complete
amendment to Act requires biological opinion to be
issued by FWS or NMFS within 90 days after initiation
under January 4, 1978 regulation and proposed rule, the
biological opinion document could express one of
following three opinions about the effect of the
project:
not likely to jeopardize or adversely affect habitat
accompanied by conservation measures
likely to jeopardize or adversely affect accompanied
by suggested alternatives
November 1983 6—13
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insufficient information — FWS or NMFS could require
information to be gathered before they would
reconsider and issue a final opinion — this
situation should not occur if care is taken during
scoping of the Biological Assessment.
Reinitiation of Formal Consultation
if new information revealing adverse impacts
if modification of project
if new species is listed that project may affect
6—14 November 1983
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Fish And Wildlife
Coordination Act
C)
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FISH AND WILDLIFE COORDINATION ACT
7 • 0 LEGISLATIVE/REGULATORY FRAMEWORK
7.0.1 Fish and Wildlife Coordination Act
The Fish and Wildlife Coordination Act (FWCA) of 1958
requires that wildlife conservation be given equal
consideration and be coordinated with other features of
water—resource development projects.
Section 662(a) of the Act requires the proponent agency
to consult with the U.S. Fish and Wildlife Service and
the State wildlife agency “...whenever the waters of any
stream or other body of water are proposed or authorized
to be impounded, diverted, the channel deepened, or the
stream or other body of water otherwise controlled or
modified for any purpose whatever...”.
Section 662(b) provides that reports and recommendation
of the wildlife agencies be given full consideration.
It further requires that the proponent agency include in
the project plans such justifiable means and measures
for wildlife purposes that the wildlife agencies find
should be adopted to obtain maximum overall project
benefits. The Act authorizes agencies such as EPA to
provide grant funds for measures necessary to accomplish
wildlife conservation activities.
7.0.2 UM orand of Understanding Between the Envirox nental
Protection Agency and the U.S. Department of Interior,
November 1978
Between 1979 and 1982, the Department of Interior and
the Department of Commerce proposed rules defining
procedures for implementation of the Fish and Wildlife
Coordination Act. In 1982 these proposals were
withdrawn in favor of administrative actions preparing
memoranda of agreement and other Executive instructions.
In the absence of formal regulations or more specific
memoranda of agreement, the Fish and Wildlife Service
has been relying on the Authority of a “Memorandum of
Understanding Between the Environmental Protection
Agency and the U.S. Department of Interior”, November
1978 for elevating resolution of FWCA—related issues
above staff level when necessary. This very general
memorandum was developed by direction of
Section 304(j) (1) of the Clean Water Act to enhance
coordination of clean water programs.
November 1983 7—1
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7.0.3 Current Practice
Regardless of the status of proposed regulations and
agreements, EPA has found it beneficial to involve the
FWS in reviewing the Facilities Plans and EID’s for a
variety of reasons. Most importantly, EPA has an
overall responsibility under its own mission and under
NEPA to protect fish and wildlife habitat (especially
wetlands). In addition, FWS, because of its expertise
in this area, can offer valuable comments and
assistance.
Secondly, for projects requiring permits, EPA or the
Corps of Engineers would eventually have to consult with
FWS on the project under the FWCA. FWS regularly
reviews all Section 404/10 permits under a general
agreement with the Corps (see Chapter 9, Section
404/10). Since problems at the end of the design stage
may require completed work to be changed and can
seriously delay a project, it is much better to consult
early in the planning process so as to avoid these
problems.
Because of these considerations, Region I EPA arranged
to have the FWS staff at their area office in Concord,
N.H. review all completed Facilities Plans and EIS’s.
In addition, it has been standard practice to involve
the FWS in early field trips and review meetings for
those projects which can be predicted to involve impacts
to wetlands and require Section 404/10 permits.
Since EPA will no longer necessarily be involved in the
planning stage and the states have assumed the
responsibility for initial compliance with Federal
requirements, it is strongly recommended that the states
make provision in their facilities planning procedures
to continue these practices.
7 • 1 VIRONMENTAL REVIEW PROCEDURES UNDER 205 (g)
The recommended steps for complying with the Fish and
Wildlife Coordination Act during a 205(g) review are
shown in Figure 7.1. The flow of activities shown
represents those which are generally in current
practice.
7.1.1 Procedures During Facilities Planning
The State should ensure at the start of the project that
the Grantee is aware of the provisions of the FWCA
itself and the general concerns of the FWS (as expressed
in the 5/9/80 letter from Beckett to Murray, see
7—2 November 1983
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Attachment 7—1). The State should make sure that
wetlands, Section 404/10, and fish and wildlife habitat
issues will be adequately addressed in the EID.
During preparation of the Facilities Plan, the State
should closely monitor those projects which may involve
wetlands or riverine construction. Whenever the State
deems it appropriate, EPA, FWS, and the State’s fish and
wildlife agency should be kept informed of progress on
specific projects and invited to review meetings and
field trips to view the wetland in question. Any FWS or
State fish and wildlife comments received should be
addressed in the development of the Facilities plan.
If it becomes evident that a preferred alternative will
require stream or water body alterations (crossings,
diversions, construction in wetlands, etc), it is
recommended that the State notify EPA as soon as
possible so that consultation under the FWCA may
proceed.
7.1.2 EID Review and Preparation of Preliminary EA by State
Regardless of whether or not the FWS was involved during
Facilities Planning, the State should arrange for FWS to
receive a copy of the completed Facilities plan as soon
as it is available. The FWS will try to comment within
30 days. The State may wish to include FWS comments
with the other comments to the Grantee requesting
further information or corrections before Facilities
Plan approval. The State may need to require that
mitigating measures be developed.
The preliminary EA should describe any wetlands/riverine
impacts, discuss the permits involved, briefly describe
any coordination that was undertaken, discuss mitigating
measures and how they are to be accomplished, and
discuss any unresolved issues.
7.1.3 Coordination Activities During Design
Where Corps permits are required, the Corps will
initiate consultation with FWS under its own agreements
with FWS. If the Corps is satisfied that FWS concerns
have been adequately met, it will issue the permits
necessary for construction. If not, the permits will be
withheld until the necessary resolution is reached.
November 1983 75
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7.1.4 EPA Review
If EPA is satisfied that fish and wildlife coordination
concerns have been adequately incorporated into the
project, it will issue a FNSI.
If unresolved issues remain, EPA will determine whether
or not an EIS is necessary under the criteria of 40 CFR
6.508 (a) (6), and/or whether further coordination with
FWS is required.
7.2 CONTACTS
7.2.1 Federal Agencies
Douglas Thompson 617—223—3910
U.S. Environmental Protection Agency
Region I
J.F.K. Federal Building
Boston, MA 02203
Gordon Beckett, Supervisor 603—834—4726
Ecological Services
Fish and Wildlife Service, Region 5
U. S. Department of the Interior
P. 0. Box 1518
Concord, NH 03301
Allen E. Peterson, Jr., Director 617—281—6700
National Marine Fisheries Service
14 Elm Street
Gloucester, MA 01930
7.2.2 State Agencies
See listing of wildlife agencies in section covering
Endangered Species Act.
7 • 3 REFER CES
The Fish and Wildlife Coordination Act , 16 U.S.C.
661—661c and subsequent additions.
ISDOI and USEPA. Memorandum of Understanding Between
the Environmental Protection Agency and U.S. Department
of the Interior , November 1978.
7—6 November 1983
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ATTACHMENT 7-1
UNITED STATES
DEPARTMENT OF THE INTERIOR
FISH AND WILDLIFE SERVICE
ECOLOGICAL SERVICES
P.O. Box 1518
Concord, New Hampshire 03301
Mr. Charles V. Murray, Jr. MAY 091980
Director, Water Division
U.S. Environmental Protection Agency
Region I
JFK Federal Building
Boston, Massachusetts 02203
Dear Mr. Murray:
Following our April 8, 1980, meeting with you and members of your staff,
we have the following general concerns and recoendations regarding
various aspects of 201 wastewater treatment facilities projects. We
recommend that, in addition to your staff and the state DEP staffs
becoming familiar with our concerns and recommendations, consulting
engineers also be given a copy of this listing so that they may incor-
porate our recommendations in the early planning stages of proposed 201.
projects. If these generalized guidelines are followed during project
planning, the review and comment process for our respective agencies
should be facilitated for most projects.
Wetlands: Avoid siting the facilities in wetlands, whenever possible.
If wetlands cannot be avoided, take all reasonable measures to minimize
the size of the area disturbed. For interceptor lines, do not place
fill above the original contours of the wetland area. Clay saddles
should be placed at intervals on any pipe passing through a wetland
to prevent drainage along the pipe. Avoid using wetlands as equipment
storage areas. Any use of wetlands should be reviewed for compliance
with the requirements of Executive Order 11990.
Floodplains: Avoid siting facilities within the 100—year floodplain,
whenever possible. If floodplain areas cannot be avoided, attempt to
site facilities at the highest elevation possible (e.g., the 50—year
floodplain boundary would be generally preferable to the 10—year flood-
plain boundary) giving full consideration to wildlife habitat values.
Any use of floodplain areas should be reviewed for compliance with
Executive Order 11988.
Streams: Avo d siting facilities to encroach upon riparian (stream
bank) vegetation. A minimum buffer strip of 100—feet of undisturbed
vegetation should be maintained between the stream and the interceptor
line, whenever possible. These concerns are related closely to the
floodplain issues. The number of stream crossings should be minimized
7—7
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—2—
and precautions taken to control erosion. The streambed should be
returned to its original grade. Crossings should be made adjacent to
rights—of—way (ROW’s) such as existing bridges or road culverts, when-
ever possible, to avoid disturbing previously undisturbed areas. Stream
crossings should be made during low flow periods of the year, such as
July—September. Crossings should be made at right angles to the stream
to minimize the length and width of stream bottom disturbance. Stream
channelization should be avoided.
Vegetation: Facilities should be sited to avoid having an impact on
forested areas, especially riparian, wetland, and floodplain types.
Interceptor lines should be routed through existing streets, roads, or
other ROW’s. Overland routes should be avoided, whenever possible.
When route alignment cannot be accomplished within existing streets,
then our preference would be an alignment through fields, pastures, golf
courses, or other areas containing herbaceous vegetation. In all cases,
the amount of vegetative clearing should be minimized; disturbed areas
should be seeded and mulched until native vegetation becomes established.
Topsoil should be striped and stockpiled separately from parent material.
After the construction is completed, the topsoil should be placed back
on top of the disturbed area. Care should be taken to replace upland
topsoils in upland areas and wetland topsoils in wetland areas. Main-
tenance roads should be eliminated on ROW’s passing through wooded
overland routes whenever possible. If vegetation maintenance is required,
we prefer to have the ROW maintained with a cover of native shrubs and
small trees instead of herbaceous ground cover.
Outfall impacts: Our concerns generally relate to the disinfection
system, the relationship between normal stream low—flow and effluent
flow, and whether the outfall is new or an existing one. Chlorine is
the most commonly used disinfectant (biocide) for municipal wastewater
because it is efficient, effective, and relatively inexpensive. 1 ow—
ever, chlorine is also toxic to aquatic life in the receiving stream.
This toxicity problem is cause for great concern when the receiving
waters support cold—water or salmonid fisheries. Receiving waters
containing a low BOD load or low organic carbon load generally have less
capacity to absorb the chlorine impact than streams with a high organic
load. In the former instance, fish and other aquatic life may form a
large part of the organic carbon reaction base resulting in a loss of
fish and invertebrates. Alternative disinfection techniques, such as
ozonation, are encouraged. Decl.orination may also be an acceptable
method of eliminating the chlorine toxicity problems. As a general
rule, we recommend residual chlorine concentrations in the effluent not
to exceed .0v 2 mg/l and 0.01 mg/i for receiving waters containing cold—
and warm-water fish populations, respectively.
7—8
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The relationship between stream flow and effluent flow is an important
consideration for fish and invertebrate co=unities. Our concerns
become pronounced when a large discharge is proposed for a small re-
ceiving stream. In these instances, a high percentage of the flow might
consist of treated effluent with subsequent undesirable impacts on
stream aquatic life. Alternative methods should be sought to avoid this
type of situation. This might include land application with percolation
back into the receiving stream, relocation of the outfall to a larger
stream, or implementation of certain advanced waste treatment systems.
A proposed outfall on a stream that does not presently have an existing
wastevater discharge will generally be cause for concern. Streams
supporting anadromous fish runs should not be further downgraded to
accept a new or additional wastevater discharge.
Secondary development: Our concerns relate to induced development in
floodplain, wetland, and other areas containing valuable wildlife habitat.
Local zoning ordinances normally are not sufficient deterrents to protect
wetlands that are not covered by Section 404 regulations (e.g., a lake
less than 10 acres in surface area or a stream less than 5 cfs and their
adjacent or contiguous wetlands) nor to protect floodplains. Zoning
ordinances generally only require first floor elevation one foot above
the 100-year flood, outside of the floodway. Development in these areas
generally could not occur without a sewer system. The action of routing
a sever line through an area containing undeveloped floodplain, wetland,
or various wooded uplands on poorly drained soils can be the single
action that opens these lands up for development. Development is thus
promoted in areas that would otherwise be secure for wildlife uses.
Mechanisms to limit this development should be incorporated in the
facility Plan. This could entail sizing the project (interceptors and
treatment works) to service the existing structures only. Grant condi-
tions or stipulations could also be made to preclude hookup rights to
any future development involving wetlands, floodplains, or unique eco-
systems. This approach could ultimately prove the most successful,
since the municipalities would have to abide by the conditions set forth
in the 201 grant.
If you have any questions regarding these concerns and recoumiendations,
please feel free to contact our office.
Sincerely yours,
44
Gordon E. Beckett
Supervisor
7—9
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Wetlands And Floodplain
Protection Procedures
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WETLANDS AND FL000PLAINS
PROTECTION PROCEDURES
8 • 0 LEGISLATIVE/REGULATORY FRNtE WORK
8 .0.1 Administrator’s Decision Statement No. 4,
February 21, 1973
EPA has had a strong policy to protect wetlands since
early 1973. The Administrator’s decision statement,
entitled “EPA Policy to Protect the Nation’s Wetlands,”
outlines the values of wetlands and states that it is
the agency’s general policy to give special attention to
any proposal with the potential to damage wetlands and
to protect wetlands to the maximum extent possible from
adverse dredging and filling practices and non—point
source pollution.
The decision statement specifically addresses the 201
grant program as follows: “. . .it shall be the policy
of this Agency not to grant Federal funds for the
construction of municipal wastewater treatment
facilities or other waste—treatment—associated
appurtenances which may interfere with the existing
wetland ecosystem except where no other alternative of
lesser environmental damage is found to be feasible.”
8.0.2 Executive Order 11990, Protection of Wetlands, May 24,
1977 and Executive Order 11988, Floodplain Management,
May 24, 1977
Due to increasing public awareness of the values of
wetlands and floodplairts and to increasing concern for
protecting these areas, President Carter issued two
orders instructing agencies to ensure that their own
actions do not diminish, but rather restore, preserve
and enhance the natural and beneficial values of wet-
lands and floodp lains. Each order directs every agency
to avoid new construction in wetlands or floodplains
except where no practicable alternative exists and then
only after adopting strong mitigating measures and
giving special public notification. Both orders require
that each agency amend existing procedures or issue new
procedures in order to implement these requirements.
November 1983 8—1
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8.0.3 Water Resources Council, ‘Floodplain Management
Guidelines for Isplementing Executive Order 11988”,
February 10, 1978
Because the Executive Order directed that agencies
prepare their procedures in consultation with the Water
Resources Council, that organization issued these
detailed guidelines to aid the agencies. While the EPA
procedures developed from these guidelines are complete
in and of themselves, the guidelines are still useful as
a reference. They give a detailed interpretation of the
Executive Order and provide a great deal of information
on the methods of identifying, evaluating, and
minimizing floodplain impacts.
8.0.4 EPA ‘Statement of Procedures on Floodplain Management
and Wetlands protection’ January 5, 1979 lAppendix A,
40 FR 6J
These procedures emphasize that, to the extent possible,
the requirements of the Executive Orders will be carried
out through the agency’s NEPA procedures. They also
point out that the 1973 EPA Wetlands Protection Policy
remains in effect, and they define “practicable” as
capable of being done within existing constraints,
including cost and technological constraints. The
specific procedures they recommend to carry out the
executive orders have been incorporated into the
following discussion.
8 • 1 1VIRONMESTAL Ri VIEW PROCEDURES UNDER 205(g)
The recommended steps for complying with EPA’S
procedures on floodplain management and wetlands
protection during a 205(g) review are shown in
Figure 8.1 and discussed below.
8.1.1 Procedures During Facilities Planning
Before developing project alternatives, the Grantee
should make a preliminary review of the proposed project
area to determine if there are any wetlands or
floodplains located there so that they may be avoided
wherever possible. The State should also review the
extent of the wetlands and floodplains located in an
area so that they will be able to judge how closely the
project should be monitored. Since the preliminary EA
must be quite detailed in this subject area, it is
Important to fully develop in the EID all of the
information that will be necessary for the EA.
8—2 November 1983
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The EID should contain detailed information on the
location, extent, type and value of wetlands and
floodplains in the area. During planning, alternatives
which avoid any impacts to the areas should be
formulated, and where an alternative will affect a
wetland or floodplain, the impacts should be quantified,
and mitigating measures should be developed.
The State should monitor closely any projects with the
potential for significant direct or indirect impacts on
wetlands or floodplains. Interim review meetings and
field trips are strongly recommended, and EPA and FWS
should be invited to attend. (See the Fish and Wildlife
Coordination Act chapter for a discussion on their
involvement). The 1973 EPA wetlands policy supports
this involvement by stating, “The Department of Interior
will be consulted to aid in the determination of the
probable impact of the pollution abatement program on
the pertinent fish and wildlife resources of
wetlands”. The Facilities Plan and EID should
incorporate any comments received from EPA and FWS
during this time.
EPA may also decide early in the process that an EIS is
necessary under the criteria of 40 CFR 6.508 (a) (2).
In any case, when it is apparent that the proposed
action is likely to affect a floodplain or wetland, the
public should be informed through appropriate public
notice procedures in accordance with Section 6 a(2) of
Appendix A to 40 CFR 6.
8.1.2 EID Review and Preparation of Preliminary KA by State
The State should forward the completed Facilities Plan
and EID to FWS for review as soon as they are
available. Comments fran FWS should be incorporated
into the State’s general comments to the Grantee. The
State should review the Facilities Plan and EID to be
sure that the treatment of floodplain/wetland
information and issues is comprehensive and that the
selected alternative is the least harmful “practicable”
one.
EPA Floodplain/Wetland procedures require the
preparation of a “Floodplain/Wetland Assessment” and a
“Statement of Findings,” along with special public
notice, if the proposed action will be in or will affect
a floodplain or wetland. However, for projects subject
to NEPA, these discussions on floodplain and wetland
matters can be incorporated into the normal
environmental assessment and FNSI, and notice can be
November 1983 8—5
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provided through the normal EA/FNSI distribution
procedures.
In accordance with 40 CFR 6a(3) and 6a(6), the
preliminary BA must cover all of the areas which would
be covered in a “Floodplain/Wetlands Assessment” and a
“Statement of Findings”. These are:
• a description of the proposed action,
• a discussion of its effects on the
floodplain/wetlands,
• a description of the alternatives considered,
• a discussion of the reason that the action must be
located in, or affect, the floodplain or wetland
including a description of the decision factors,
• a statement regarding the conformance of the action
to applicable State or local floodplain protection
standards, and
a description of how the proposed action has been
modified to minimize potential harm.
8.1.3 EPA Review
EPA will review the preliminary EA as well as the
correspondence fran FWS and any other pertinent
information. If the project will not affect the
resources or will present the least impact of any
practicable alternative, EPA will issue a FNSI and will
take special care to be sure it is distributed to all
parties and agencies with special interest in
floodplains and wetlands. If there are unresolved
floodplain/wetland issues, EPA will consult with the
Grantee, State and FWS and try to resolve them, and will
again consider whether or not an EIS is warranted.
8.2 CONTACTS
8.2.1 Federal Agencies
Julius Mikolaities 603—224—2585
U.S. Fish and Wildlife Service
Ecological Services
P.O. Box 1518
Concord, NB 03301
8—6 November 1983
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8.2.2 State Agencies
CONNECTICUT 203-566— 2110
Department of Environmental Protection
State Office Building
165 Capitol Avenue
Hartford, CT 06106
MAINE 207—289—2801
Department of Conservation
Maine Geological Survey
State House Station #22
Augusta, ME 04333
MASSACHUSETTS 617—292—5519
Department of Environmental
Quality Engineering
One Winter Street
Boston, MA 02202
NEW HAMPSHIRE 603—271—2147
Water Resources Board
37 Pleasant Street
Concord, NH 03301
RHODE ISLAND 401—277—6820
Department of Environmental
Management
Division of Land Resources,
Wetlands Section
38 State Street
Providence, RI 02908
VERMONT 802—828—3365
Agency of Environmental Conservation
State Office Building
79 River Street
Montpelier, Vermont 05602
Information for Locating Floodplains and Wetlands
National Flood Insurance Program community floodplain
maps:
Federal Emergency Management 617—223—2616
Agency (FEMA)
John W. McCormack Post Office and
Courthouse Building, Room 462
Boston, MA 02109
November 1983 8—7
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Fish and Wildlife Service
wetland inventory maps
Regional Office
U.S. Fish and Wildlife Service
One Gateway Center, Suite 700
Newton, MA 02158
County Soil Survey Maps; Soil Conservation Service, USDA
District Offices
Storrs, CT 203—429-9361
Orono, ME 207—866—2132
Amherst, MA 413—549—0650/256—0441
Durham, NH 603—868—7581
West Warwick, RI 401—884—9499
Burlington, VT 802—862—6261
Corps of Engineers floodway maps
U.S. Army Corps of Engineers 617—894—2400 x55].
424 Trapelo Road
Waltham, MA 02254
USGS Quadrangle or Orthophoto Quadrangle Maps
Municipal Wetland protection Bylaws
e v TfI
u.J
Office of the President. “protection of
Executive Order 11990, Federal Register ,
No. 101, May 25, 1977.
Water Resources Council Floodplain Management Guidelines
for Tmplementing Executive brder 11988, February 10,
1918 (includes Executive Orders 11988 and 11990).
USEPA. Statement of Procedures cm Floodplain Management
and wetlands protection, January 5, 1979 (in Appendix A ,
EPA Implementation Procedures on NEPA, 40 CFR Part 6,
November 6, 1979).
617—965— 510.0
Wetlands,”
vol. 42,
8—8
November 1983
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Section 404 Of
Clean Water Act And
Section 10 Of
Rivers And Harbors Act
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SECTION 404 OF CLEAN WATER ACT AND
SECTION 10 OF RIVERS AND HARBORS ACT
9.0 LEGISLATIVE/REGULATORY FRAMEWORK
9.0.1 Clean Water Act — Section 404
Section 404 of the Clean Water Act established a
national program to control the discharge of dredged or
fill material into the t1 waters of the United States”.
“Waters of the United States” are defined as all
tributaries of navigable water up to their headwaters
and landward to their ordinary high water mark, thus
including wetlands. Key requirements of Section 404
are: that there must be a clear need to place fill or
dredged material in the water resource, that alterna-
tives must be thoroughly examined, and that the least
damaging practicable alternative must be adopted.
Under Section 404(a) a permit system was established for
administration by the Corps of Engineers. Section
404(b) required EPA, in consultation with the Corps, to
develop environmental criteria to guide the permitting
decisions. These criteria are discussed below.
Under Section 404(c) EPA may overrule a Corps decision
to allow a discharge if EPA determines such discharge
will have an unacceptable adverse effect on municipal
water supplies, shellfish beds, fishery areas, wildlife
or recreational areas. EPA 404 staff regularly review
Corps permit applications by examining the projects for
conformance with the 404(b) guidelines.
In 1977, the provisions of Section 404 were expanded
under Sections 404(g) and (h) to allow state permit
programs in lieu of the Corps program in non—tidal
waters and where the Corps has not historically
maintained navigation channels. There are no delegated
or Federally approved state dredge and fill permit
programs currently in Region I.
9.0.2 Rivers and Harbors Act — Section 10
Section 10 of the Rivers and Harbors Act of 1899
established a permit program administered by the Corps
which regulates the placement of structures into
navigable waters and is concerned with their effect on
navigation.
November 1983 9—1
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A major distinction between Section 404 and Section 10
is the difference between “waters of the United States”
and “navigable waters.” As noted above, “waters of the
United States” under Section 404 extends the jurisdic-
tion beyond the limits of traditional navigability.
In most situations applying to “navigable waters,” the
Corps will consolidate permit applications for both
Section 404 and Section 10. For areas not defined as
“navigable waters”, only Section 404 permits apply.
Section 10 permits, however, will be required for the
placement of any structure, such as an outfall pipe, in
navigable waters even without any discharge of dredged
or fill material.
Section 404 and/or 10 permits are required for any
wastewater treatment plants or sewer lines located in or
crossing water bodies or wetlands.
9.0.3 EPA Guidelines for Specification of Disposal Sites for
Dredged or Fill Material [ 40 CFR 2301
On December 24, 1980 EPA issued a Final Rule
establishing substantive criteria for use in evaluating
discharges of dredged or fill material under Section 404
of the Clean Water Act [ 45 FR 85336] . These guidelines
replace the September 5, 1975 Interim Final Guidelines
developed pursuant to Section 404(b) (1) and apply to all
404 permit decisions made after March 23, 1981. They
reflect the 1977 amendments to the Clean Water Act, were
developed in conjunction with the Corps, and, although
entitled “Guidelines”, have the force of regulations.
The 1980 guidelines stress the overall 404 program’s
goal of preventing any discharges that would have art
unacceptable adverse impact on the aquatic ecosystem,
including wetlands, either individually or cumulatively.
Section 230.10, Restrictions on Discharge, defines the
four independent requirements which must be met to
comply with the guidelines. They are:
• there must be no less environmentally damaging,
practical alternative available;
• the discharge must not violate applicable water
quality standards or jeopardize an endangered
species;
• the discharge must not result in a significant
degradation of the aquatic environment;
9—2 November 1983
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• all reasonable measures must be taken to minimize
impacts to the aquatic environment.
Section 230.5 of the guidelines establishes a general
procedure for evaluating whether a particular discharge
site may be approved. Section 230.11 establishes
“factual determinations” which are to be used in
determining whether or not a proposed discharge
satisfies the conditions for compliance with the
guidelines.
The guidelines point out that the level of documentation
in the factual determinations and findings of compliance
should reflect the significance and complexity of the
discharge activity.
9.0.4 Interim Final Rule for Regulatory Programs of the Corps
of Engineers [ 33 FR 320—330]
On July 22, 1982 the Corps published Interim Final
Regulations [ 47 FR 31794] to update previous regulations
governing the Corps’ regulatory programs in order to
reflect changes to the Clean Water Act, judicial
decisions, Executive Orders and policy changes since
1977. These regulations establish policies, procedures
and criteria for evaluation and issuance of 404/Section
10 permits.
A key policy of the Corps’ permitting program is that a
project must be in the public interest. The p.reamble to
the Corps’ 1982 regulations indicates that the Corps’
public interest review goes hand-in—hand with EPA’S
Guidelines [ 40 CFR 230] and that, at the end of the
public interest review, a permit would be denied if it
did not conform to the EPA guidelines.
9.0.5 Applicability of Other Federal Legislation to the
404/Section 10 Permit Process
The Corps of Engineers must comply with several other
Federal statutes during its 404/Section 10 permit
evaluation process.
A State Water Quality Certification is required under
Section 401 of the Clean Water Act before a 404/Section
10 permit can be issued. Permit applications are
routinely reviewed by U.S. Fish and Wildlife Service
pursuant to the Fish and Wildlife Coordination Act
(FWCA) as discussed in Chapter 7 and by National Marine
Fisheries Service. A “consistency determination” is
required from the State Coastal Zone Management Agency
November 1983 9—3
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pursuant to the Coastal zone Management Act (CZMA) as
discussed in Chapter 4.
The Corps also must comply with NEPA and could require
the preparation of an EIS if significant environmental
issues remain unanswered at the time the permit
application is submitted.
9.1 “I m JTAL REvi P CEDURES U ER 205 (g)
In actual practice, the Corps cannot issue a permit
during the facilities planning process because they need
the detailed plans and specifications developed during
design in order to make a permit decision. Secondly, it
is not necessary to have an approved 404/Section 10
permit to apply for a Step 2+3 or a Step 3 Construction
Grant. However, the permit process normally takes from
two to six months and can incur substantial delays and
costly redesign if alternatives and mitigating measures
have not been adequately addressed. It is therefore
strongly recommended that the Grantee and State take the
404/Section 10 requirements into consideration during
the development of the Facilities Plan and the EID and
that the Grantee initiate the 404/Section 10 application
process with the Corps during the project design phase.
Construction Grants 1982 indicates that the facilities
plan and BID should evaluate alternatives identified by
the Corps if a 404/Section 10 permit is needed. The
recommended steps for complying with Section 404 during
05(g) review are shown in Figure 9.1. The process
shown in Figure 9.1 and described be1 is aimed at
ensuring that there will be no permit denials at the end
of the design phase when extensive engineering design
changes would be costly and time—consuming.
9.1.1 Procedures During Facilities Planning
At the beginning of the facilities planning process, the
State should discuss 404/Section 10 requirements with
the Grantee and should give the Grantee the latest
EPA/Corps guidelines and criteria under Section 404.
During plan development, alternatives which would avoid
any river crossings or other dredging activities should
be formulated. If, however, it is determined that such
situations cannot be avoided and a 404/Section 10 permit
will be required, alternative methods of accomplishing
the work in an environmentally sound manner should be
formulated along with further mitigation measures. The
Grantee should then review the guidelines and develop
9—4 November 1983
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information for inclusion in the EID which allows a
determination of the environmental effects of placing
dredged and fill materials into water or wetland areas.
In order to expedite later reviews, the EID should
contain a separate Section 404 discussion following the
criteria of Section 230.10, and including sufficient
information for a preliminary determination that Section
404 approvals from the Corps can be anticipated.
9.1.2 BID Review and Preparation of Preliminary KA by State
Since the states do not have an agency with primary
Section 404 responsibility, it is recommended that the
State consult with EPA’S 404 staff to get an opinion on
whether the project would receive a 404/Section 10
permit. The EPA 404 staff is experienced in applying
the guidelines and routinely monitors Corps permit
decisions. Therefore, it is possible for them to make a
reasonable judgment as to whether or not the Corps would
issue a 404/Section 10 permit for a specific project
alternative based on information provided in the EID.
The State should also review the EID to assure
satisfaction of any overall environmental concerns
raised by issuance of a 404 permit.
The preliminary EA prepared by the State should refer to
the applicability of 404/Section 10 to a project,
discuss the environmental issues relating thereto, and
give an opinion as to the project’s acceptability in
consideration of the prevailing guidelines.
9.1.3 EPA Review
After receiving the preliminary EA, EPA should review
the discussion for adequacy and accuracy and issue the
FNSI if the project is acceptable under the Guidelines.
If EPA believes the project does not meet the
Guidelines, EPA may decide to prepare an EIS under the
criteria of 40 CFR 6.508(a) (2).
9.2 cONTACTS
9.2el Federal Agencies
William F. Lawless, Chief 617—647—8338
Regulatory Branch
U.S. Army Corps of Engineers
New England Division
424 Trapelo Road
Waltham, MA 02154
November 1983
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Douglas Thompson 617—223-3910
404 coordinator
U.S. Environmental Protection Agency
Environmental Evaluation Section
Water Quality Branch
J.F.K. Federal Building
Boston, MA 02203
9.2.2 State Agencies
Agencies noted under the chapters on Wetland/Floodplain
or Coastal Zone Management Act may be able to provide
assistance with 404 evaluation.
9.3 REFER 1CES
The Rivers and Harbors Act of 1899 , 33 U.S.C. 403,
particularly Section 10.
The Clean Water Act , 33 U.S.C. 1344 and subsequent
additions, particularly Section 404, Permits for Dredged
or Fill Material.
USEPA. “Guidelines for Specification of Disposal Sites
for Dredged or Fill Material,” 40 CFR 230, Federal
Register , Vol. 45, No. 249, December 24, 1980,
85336—85357.
USCOE. “Interim Final Rule for Regulatory Programs of
the Corps of Engineers,” 33 CFR 320—330, Federal
Register , Vol. 47, No. 141, July 22, 1982, 31794—31834.
USEPA, Office of Water Program Operations (WH—547).
Construction Grants 1982 (CG—82) , Interim Final.
Washington, D.C.: 430/9—81—020, July 1982.
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National Historic
Preservation Act
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NATIONAL HI STORIC PRESERVATION ACT
10.0 LEGISLATIVE/RBGUL&TORY FRAMEWORK
10.0.1 National Historic preservation Act
The National Historic preservation Act (NHPA) of 1966
and its supporting regulations are intended to help
ensure that no significant archaeological or historical
properties are irretrievably lost as a result of
Federally—funded construction projects.
The major provisions of NHPA are the following:
• establishment of the National Register of Historic
Places,
• implementation of the Section 106 review process, and
• establishment of the Advisory Council on Historic
Preservation.
The National Register of Historic Places is a listing of
significant historic buildings, districts and
archaeological sites maintained by the Secretary of the
Interior under Section 101(a) of NHPA.
Under Section 106, any Federal agency must take into
account the effect of a Federally funded, licensed or
assisted project upon any historic or archaeological
property listed in, or eligible for listing in, the
National Register.
In Sections 201—212 of NHPA, the establishment of the
Advisory Council on Historic Preservation and its role
in the 106 review process are described. The Advisory
Council was authorized to develop regulations in order
to implement the terms of Section 106 of NHPA.
10.0.2 Advisory Council Regulations
Executive Order 11593, “Protection and Enhancement of
the Cultural Environment” of 1971, required Federal
agencies to consult with the Advisory Council in the
development of procedures to preserve and enhance sites,
structures, and objects of historical or architectural
significance. The Advisory Council regulations
implementing Section 106, “Procedures for the Protection
of Historic and Cultural Properties”, were published in
1974. In order to improve implementation of the
November 1983 10—1
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Advisory Council regulations, the Presidential Memor-
andum on Environmental Quality and Water Resources
Management in 1978 directed that the 1974 regulations be
amended and further stated that “Federal agencies with
water resource responsibilities.., publish procedures
implementing the Act (NHPA).” Pursuant to the require-
ments of the Presidential Memorandum, the Advisory
Council issued new regulations in January 1979 (36 CFR
Part 800). To date EPA has not published procedures for
compliance with Section 106 of the NHPA. It is EPA’S
policy to apply the Advisory Council’s regulations in 36
CFR 800 to all EPA programs which have the potential to
affect historic and cultural properties.
The major steps in the Section 106 review process
described in 36 CFR 800 ares the identification of prop-
erties which are listed on the National Register or
eligible for listing; the determination of whether the
project will have an effect on the properties and
whether the effect will be adverse; and agreement on
mitigating or avoidance measures. The prir ipal
participants in the process are the Grantee, the State
Historic Preservation Officer (SHPO), EPA, and the
Advisory Council.
10.0.3 State Historic Preservation Officer
The State Historic preservation Officer (SHPO),
appointed by the governor of each state, is reponsible
for the inventory of cultural resources in each state
and for implementing programs necessary for the
protection of resources on or eligible for the National
Register. The SHPO is also responsible for directing a
state—wide survey of all cultural properties that are
significant in American history, architecture,
archaeology and culture at the national, state and local
levels. The SHPO has a primary role in the review of
historic and archaeological properties that may be
affected by Federal programs in compliance with the
Advisory Council Procedures (36 CFR 800.5) and should
participate in any consultations on mitigating measures
and sign any Memorandum of Agreement reached under the
Section 106 regulations. The SHPO can also generally
provide assistance in designing surveys or choosing
qualified consultants.
10—2 November 1983
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10.1 VIRONM 1TAL REVIEW PROC )URES UNDER 205 (g)
The NUPA requires that, before EPA can issue a
construction grant, the Section 106 review process must
be completed. The state coordinator should inform the
Grantee of the requirements of the Section 106 review
early in the planning process. Generally the
Section 106 review period should run concurrently with
the NEPA review process. Consultation with the SHPO and
EPA about the 106 review process early in the facilities
planning process will help identify possible problems,
and will reduce delays if an extensive review is
required. In addition, identification of National
Register or eligible properties early in the planning
process will allow for the full development of
alternatives which have less or no adverse impact. It
is desirable that the Section 106 review be completed
before a FNSI is issued. In cases where a Step 2+3
grant is involved, the review process should be
substantially completed, or if the project has adverse
impacts, be at a point where agreement on necessary
mitigating measures seems likely.
The major steps necessary for complying with Section 106
during a 205(g) review are shown in Figure 10.1 and
discussed below. Optional steps are shown by dashed
lines.
10.1.1 Identification of National Register or Eligible
Properties
The first step in the Section 106 review process is the
identification of historic and archaeological proper-
ties. This initially involves contacting the SHPO and
any local historic commission in the community of the
project’s location. If an adequate survey of
archaeological/historic resources has not been
previously conducted in the project area, a survey may
be necessary to identify resources on or potentially
eligible for the National Register. This survey must be
conducted by a professional.
The extent of survey activities is determined in
consultation with the SHPO and based on the probability
with which historic and archaeological properties can be
expected to be found within the area of the project’s
potential environmental impact. The Advisory Council’s
regulations state that indirect as well as direct
impacts be considered. Past practice has often been to
limit surveys to direct impacts, such as areas where
ground will be disturbed for the project. In practice
november 1983 10—3
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the Grantee and the SHPO can usually reach an agreement
on the scope of an individual project.
There are different levels of surveys to be conducted at
specific stages in the planning process. The first
level of survey is the reconnaissance survey, designed
to identify any archaeologically and/or historically
sensitive areas potentially within the project area.
This level of survey involves background research into
the available literature and the consultation of local
sources (written and oral) for the identification of
culturally significant properties. This survey should
be done as early in the planning effort as possible,
since its results may influence the formulation or
choice of alternatives to avoid identified properties or
areas suspected to contain resources.
Later in the facilities planning and design process,
when the project alternatives have been developed, a
second level of survey may be necessary where the
project’s construction would overlap a sensitive area.
This survey involves field testing of previously
undisturbed lands. If archaeological properties are
discovered, a site examination to evaluate the
significance of any identified properties will follow.
When a survey identifies a property that is not on the
National Register but has historical, architectural,
archaeological, or cultural value, the Grantee, in
consultation with the SHPO, will apply the National
Register criteria (36 CFR 60.4) to see if the property
might be eligible. If the SHPO and the Grantee agree
that the identified property does not meet the criteria,
the Grantee should document the agreement.
If a property appears eligible, a request for a deter-
mination of eligibility must be made. 36 CFR Part 63
discusses the procedures for this in detail. This
request and any other formal correspondence must be sent
by EPA, as EPA’s responsibilities under Section 106
regulations cannot be delegated. Basically, if the SHPO
and the EPA agree that a property is eligible, EPA shall
forward to the Keeper of the National Register:
1) a letter stating their agreement and 2) a description
of the property with the SHPO’s statement that the
property is eligible for the National Register. Written
notice of the eligibility determination made by the
Keeper of the National Register will be received by both
EPA and the SHPO within 10 working days. If EPA and the
SHPO do not agree about the property’s eligibility, the
EPA shall submit a letter to the Keeper of the National
10—4 November 1983
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Register requesting a determination of eligibility. The
Keeper must respond to this request within 45 days of
its receipt.
In July 1982, the Advisory Council temporarily suspended
three sections of its regulations. Included was the
suspension of Section 800.4(a) (4) which now allows the
Grantee to proceed with the rest of the Section 106
process concurrently with the determination of
eligibility if it appears likely that the Keeper will
determine that the properties are eligible. The
determination of eligibility must still be undertaken.
If there are no National Register or eligible properties
in the area of potential impact, the project does not
need to go through the Section 106 process. The Grantee
should include a letter from the SHPO in the EID stating
that there are no National Register or eligible
properties in the area.
10.1.2. DetermInation of Effect
Having identified the properties listed in, or eligible
for listing in, the National Register, a determination
of effect on the properties by the proposed project
alternative or alternatives must be made. The Grantee,
in consultation with the SHPO, will apply the Advisory
Council Criteria of Effect (36 CFR 800.3(a). An effect
occurs when a project directly or indirectly changes the
integrity of location, design, setting, materials,
workmanship, feeling or association of the property that
contributes to its significance in accordance with the
National Register criteria.
If there is no effect, the project can proceed with the
Grantee retaining the documentation of no effect. The
Grantee should notify EPA that a determination of no
effect has been made, so that EPA can notify the
Advisory Council. If the Executive Director of the
Advisory Council does not object within 15 days, the
Section 106 process is complete.
10.1.3 Determination of Adverse Effect
If an effect is found to result from the project, then a
determination of either no adverse effect or adverse
effect must be made by the Grantee in consultation with
the SHPO. The criteria of adverse effect found in 36
CFR 800.3(b) are basically:
• destruction or alteration of all or part of a
property;
November 1983 10—7
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• isolation from, or alteration of, the property’s
surrounding environment;
• introduction of visual, audible, or atmospheric
elements that are out of character with the property
or alter its setting;
• neglect of a property resulting in its deterioration
or destruction;
• transfer or sale of a property without adequate
conditions or restrictions regarding preservation,
maintenance, or use.
If it is determined by the Grantee and the SHPO that the
effect will not be adverse, documentation of the
determination must be submitted to the Advisory
Council. The documentation must be sent by EPA and
include a cover letter from EPA stating the
determination of no adverse effect. As required by 36
CFR 800.13(a), the documentation must include:
• a description of EPA’S involvement in the project;
• a description of the proposed project, including
photographs, maps, drawings and specifications;
a list of the National Register or eligible
properties that will be effected, including
description of physical appearance and significance;
• a brief statement explaining why each of the criteria
was found inapplicable;
• a written statement from the SHPO; and
cost estimates including Federal and non—Federal
shares.
Once submitted to the Advisory Council, there is a 30-
day review period for the Advisory Council to concur
with or reject the finding of no adverse effect. If the
Executive Director concurs with the determination of no
adverse effect, the Section 106 review process is
completed. The State’s EA should include the letters
from the SHPO and the Executive Director. If the
Executive Director does not agree with the
determination, he may suggest conditions which would
mitigate the adverse effect. If EPA and the Grantee
agree with these conditions, the conditions should be
documented in the EA and will be included as part of the
grant conditions. If EPA and the Grantee do not accept
10—8 November 1983
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the conditions, or if the Executive Director disagrees
without suggesting conditions, the project is considered
to have an adverse effect.
10.1.4 Preliminary Case Report
If the proposed project is determined to have an adverse
effect on National Register or eligible properties, the
Grantee must prepare a Preliminary Case Report, and
develop proposed mitigating measures. The contents of
the report are described in 36 CFR 800.13(b) and
include, in addition to the material in the section
above: the status of the project in the NEPA and State
and EPA review processes, views of other governmental
agencies or groups, and description and analysis of
alternatives which would avoid or mitigate the adverse
effect.
The Preliminary Case Report must be sent by EPA to the
Advisory Council. With the suspension of 36 CFR
800.6(c)(1) by the Advisory Council on June 4, 1982,
there are now two paths to compliance with the remainder
of the Section 106 review process. In the case of non-
controversial projects that have effects that are
customarily mitigated in a standard manner, the EPA can,
at this point, prepare a Memorandum of Agreement (MOA),
with the proposed mitigating measures. If the EPA, the
SHPO and the Grantee sign the MOA, EPA can send it,
along with the Preliminary Case Report, to the Advisory
Council. If the MOA meets the requirements listed in
the Supplemental Guidance [ 47 FR 29861] , the Executive
Director will sign it and submit it to the Chairman of
the Council for ratification. Normally, an on—site
visit and public information meeting will be waived.
This expedited process can save substantial time. More
information on standard mitigating measures is contained
in the Advisory Council Manual of Mitigation Measures.
Once the Chairman has ratified the MOA, the Section 106
process is complete. The EA should contain the
conditions specified in the MOA, and the grant will
require that the project design meet the conditions.
10.1.5 Consultation Process
Projects which cannot use the expedited process must go
through the consultation process. The Executive
Director, EPA, the SHPO and the Grantee must meet to
attempt to produce a MOA with mitigating measures. A
visit to the site and a public information meeting are
usually required. If the consultation results in
agreement, the signed MOA is sent to the Chairman for
ratification.
November 1983 10—9
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If an agreement cannot be reached, or if under any of
the above cases, the Chairman chooses not to ratify the
MOA, the project goes to the Advisory Council for
discussion at a meeting. The Council will issue
comments, and if EPA and the Grantee accept them, the
Section 106 process is complete. If EPA or the Grantee
do not accept the conditions, EPA must submit a written
report to the Advisory Council explaining why the
project should proceed. That submission fulfills the
Section 106 requirements.
In cases where a significant adverse impact cannot be
mitigated, an EIS may be required. It is normally
intended that the Section 106 comment period run
concurrently with the NEPA review process. The Draft
EIS should contain sufficent information on the project
and its effect on National Register or eligible
properties to be submitted as a Preliminary Case
Report. The Section 106 review process must be
completed prior to issuance of the Final EIS.
10.1.6 Activities During Construction
If during the construction of the facility previously
unsuspected archeological artifacts are discovered, the
SHPO should be notified immediately. If the artifacts
are determined to be significant, the Grantee, EPA and
the SHPO should determine which archeological
investigation, documentation or preservation activities
are necessary. The Secretary of the Interior’s
Standards and Guidelines for Archaeology and Historic
Preservation should be used.
10.2 CONTACTS
10.2.1 Federal Agencies
Advisory Council on Historic 202—786—0505
Preservation
Thomas King, Director of Cultural
Resources Preservation
Donald Klima, Chief of Eastern
Division of Project Review
Sharon Conway and Kate Perry, New England
Representatives
Ronald Anzelone, Staff Archaeologist
1100 Pennsylvania Ave. N.W., Suite 809
Washington, DC 20004
ia—ia November 1983
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10.2.2 State Agencies
CONNECTICUT
John Shannahan, Director and SHPO 203—566-3005
David poir ier, Staff Archaeologist
Connecticut Historical Commission
59 South Prospect Street
Hartford, CT 06106
MAINE
Earle Shettleworth, Jr., Director and 207—289—2133
SHPO
Dr. Arthur Spiess, Staff Archaeologist
Dr. Robert Bradley, Staff Archaeologist
Maine Historic preservation Commission
55 Capitol Street, Station 65
Augusta, ME 04333
HAS SACHU SETTS
Patricia L. Wes].owski, SHPO 617—727—8470
Valerie Talinage, State Archaeologist
Massachusetts Historic Commission
294 Washington Street — 5th Floor
Boston, MA 02180
NEW HAMPSHIRE
George Gilman, SHPO 603—271—3483 or
Dr. Gary Hume, Staff Archaeologist 603—271—3558
Linda Ray Wilson, Director
New Hampshire Historic preservation
Off ice
6 Loudon Road
P.O. Box 856
Concord, NH 03301
RHODE ISLAND
Eric Hertfelder, Deputy SUPO and 401—277—2678
Director
Paul Robinson, State Archaeologist
Rhode Island Historic Preservation Commission
150 Benefit Street
providence, RI 02903
VERMONT
Eric Gilbertson, Director/Deputy SHPO 802—828—3227
Giovanna peebles, State Archaeologist
Division for Historic Preservation
Pavilion Bldg.
Montpelier, VT 05602
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10.2.3 Local Historical Society or Historic Commission
1 11 1
.
The National Historic Preservation Act of 1966 ,
16 Usc 470 and subsequent additions.
Executive Order 11593, Protection and Enhancement of the
Cultural Environment , 16 U.s.c 470, May 1971
USD01, “Determination of Eligibility for Inclusion in
the National Register of Historic places,” Code of
Federal Regulations , Title 36, Part 63, 275—278.
(Source: 42 FR 47661, September 21, 1977)
Advisory Council on Historic preservation. “Protection
of Historic and Cultural properties,” Code of Federal
Regulations , Title 36, Part 800, 468—484. (Source:
44 FR 6072, January 30, 1979)
USD01, “Criteria for Evaluation,” Code of Federal
Regulations , Title 36, Part 60.4, 252—253. (Source:
46 FR 56187, November 16, 1981)
Advisory Council on Historic preservation, “Supplemen-
tary Guidance: Preparation of Memoranda of Agreement,”
Federal Register , Vol. 47, No. 132, July 9, 1982, 29861.
Advisory Council on Historic Preservation. Memorandum:
Information Regarding Suspension of Portions of 36 CFR
Part 800 , July 16, 1982.
Advisory Council on Historic preservation. Manual of
Mitigation Measures (MOMM) , Section 106 Update/3,
October 12, 1982.
10—12 November 1983
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National Registry Of
Natural Landmarks
-------
NATIONAL REGISTRY OF NATURAL LANDMARKS
11 • 0 LEG ISLATIVE/REGUL TORY FRAMEWORK
The Historic Sites, Building and Antiquities Act of
1935, a forerunner of the National Historic Preservation
Act, declares...”that it is a national policy to pre-
serve for public use historic sites, buildings, and
objects of national significance for the inspiration and
benefit of the people of the United States.”
Under this authority, the Department of the Interior has
established a natural areas program and maintains a
National Registry of Natural Landmarks. “Federal
agencies are responsible for considering the existence
and location of natural landmarks when assessing the
effects of their actions on the environment under
Section 102(2)(C) of the National Environmental Policy
Act” (36 CFR 62.6(d)]
Many states have similar programs for listing
outstanding or critical natural areas.
11.1 4VIRONMENTAL REVIEW PROCEDURES UNDER 205(g)
11.1.1 Procedures During Facilities planning
The State should maintain an up—to—date list of the
areas on the National Registry of Natural Landmarks.
Updated lists are published periodically in the Federal
Register or can be obtained from the National Park
Service contact listed below. The State should also
keep lists of the properties on their own critical or
outstanding natural area programs.
If there is an area on one of these lists within the
study area, the State should inform the Grantee and his
consultant during the development of the Facilities
plan.
Those developing the Facilities Plan should be aware of
the significance of the natural area and try to avoid
formulating any alternatives which would adversely
affect it. The EID should discuss the area and its
significance. Any impacts to the areas should be
weighed carefully when choosing a preferred alternative.
November 1983 11—1
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11.1.2 BID Review and Preparation of preliminary BA by State
The State should review the EID to ensure that known
landmarks are identified and addressed and that adverse
impacts are avoided or mitigated. The preliminary EA
should discuss the landmarks and whether or not adverse
impacts are anticipated.
11.1.3 EPA Review
EPA will review the preliminary EA. Where no adverse
impacts to a landmark are anticipated, EPA will issue a
FNSI. Where adverse impacts are expected, EPA will
determine whether an EIS is necessary under the criteria
of 40 CFR 6.506(a) (5).
11.2 CONThCTS
Herbert S. Cables, Jr. 617-223—3769
Regional Director, North Atlantic Region
National Park Service
15 State Street
Boston, MA 02109
1 1 3
.L.L. J
USD01, National Park Service. “Natural Landmarks
National Registry,” Federal Register , Vol. 48, No. 41,
March 1, 1983, 8682.
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Wild And Scenic
Rivers Act
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WILD AND SC 4IC RIVERS ACT
12 • 0 LEGISLATIVE/REGULATORY FRAMEWORK
12.0.1 Wild and Scenic Rivers Act
The Wild and Scenic Rivers Act establishes a procedure
for protecting outstanding rivers in their “free
flowing” condition. Pursuant to the provisions of the
Act, rivers or river segments may be designated for
inclusion in the National Wild and Scenic Rivers System
in one of three classifications: wild river areas,
scenic river areas and recreational river areas.
Designation under any of the classifications may be
accomplished by Congressional action or by the Secretary
of the Interior, following a submission by a State
Governor.
The Act directs that the Secretary of Interior, with the
assistance of the National Park Service (formerly the
Heritage Conservation and Recreation Service), prepare
an inventory of candidate rivers to assist in
determining which rivers should be designated. From
this list, Congress may choose to instantly designate a
river or may choose to authorize further study of a
river. In the latter case, the National Park Service or
the Forest Service carry out the study to determine the
advisability of including the river and to devise a
management plan. Based on the report, Congress may then
decide to designate the river.
Under Section 7 of the Act, different requirements apply
to “designated” rivers, rivers “under study”, and rivers
identified in the “inventory.” These may be summarized
as follows:
For a “designated” river, no Federally—recommended
water resource project may be authorized which would
have a direct and adverse effect on the values for
which the river was established without advising the
Secretary of the Interior (or, in the case of a
river within a national forest, the Secretary of
Agriculture) and Congress. The Department of the
Interior has determined that any water resource
project construction within one—quarter mile or
within the visual field of the river could have a
direct and adverse impact.
November 1983 12—1
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For a river “under study”, the provisions cited
above apply for a three—year period following it8
designation as a potential addition to the national
system unless the Secretary of the Interior or
Secretary of Agriculture make the determination that
the river under study should not be included in the
National Wild and Scenic Rivers System and notice is
published in the Federal Register.
For a river included in the “inventory” there is no
specific protection mandated by the Act. The
president, however, issued a directive on August 2,
1979, in conjunction with his Environmental Message,
that Federal agencies avoid or mitigate any adverse
impacts on rivers identified in the inventory.
The Allagash River in Maine is the only designated river
In Region I. No rivers are currently under study. A
significant number of New England rivers are, however,
included on the current Nationwide Rivers Inventory
which was published in January 1982.
12.0.2 CEQ Memorandum for Heads of Agencies, August 10, 1980
In response to the 1979 presidential directive, CEQ
distributed a memorandum entitled: Interagency
Consultation to Avoid or Mitigate Adverse Effects on
Rivers in the Nationwide Inventory [ 45 FR 59189] . This
is a guidance document which establishes a procedure for
evaluating the impacts of Federal actions on rivers
which are listed on the inventory. Based on the
presidential directive, It also requires Federal
agencies to consult with the National Park Service
and/or the Forest Service to resolve conflicts and to
develop mitigation measures for such impacts.
Appendix I to the memorandum provides a guide for
identifying potential adverse effects on wild and scenic
rivers.
12.0.3 State Programs
Massachusetts has adopted its own scenic rivers
designation program, and Maine has adopted a river
conservation policy which governs the development of new
hydroelectric and other dam projects and protects river
shoreland from improper development. Connecticut,
Vermont and New Hampshire are considering adopting some
type of river conservation policy.
12—2 November 1983
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Maine has designated several rivers for protection under
its new policy. Massachusetts has designated only the
North River under its State program. Although such
designations do not trigger action under the Federal
Act, NEPA requires consideration of any State or locally
significant resources.
12 • 1 1VIROM( 4TAL k v.LEW PROCEDURES UNDER 205 (g)
The major steps for complying with the Wild and Scenic
Rivers Act under a 205(g) review are shown in
Figure 12.1.
12.1.1 Procedures During Facilities Planning
The State should maintain an up—to—date list of the
rivers in the national program and in its State
program. If there is a river on one of those lists
within the study area, the State should inform the
Grantee and his consultant at the beginning of the
Facilities Plan preparation.
If there is a wild and scenic or recreational river in
any status of consideration within the study area, the
EID must describe the qualities of the river that are
the basis of its being considered and then assess the
impacts of the project on those qualities. Good sources
of information include the managing agency for a
specific river, interested state agencies and river
interest groups. The managing agencies include the
National Park Service for a designated river or a river
listed on the inventory and the Forest Service for a
designated river on U.S. Department of Agriculture land.
If the project would result in adverse impacts, the EID
must suggest measures for mitigation or avoidance which
could be incorporated into the Facilities plan.
12.1.2 BID Review and Preparation of Preliminary BA by State
The State must review the EID to be sure the information
describing a river’s status and anticipated impacts is
adequate.
If there are no adverse impacts, the preliminary EA can
be prepared, briefly mentioning the river’s status and
explaining why there is no impact.
Where adverse impacts to a designated river cannot be
avoided, it is recommended that the State notify EPA
immediately so that EPA can consult with the National
Park Service or Forest Service to resolve any conflicts.
November 1983 12—3
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Where there are adverse impacts to a non—designated
river listed on the inventory, the State should send a
copy of the preliminary EA to the National Park Service
or the Forest Service. The National Park Service or the
Forest Service will comment on the preliminary EA within
30 days. If they do not comment within that time frame,
the State may submit the preliminary EA to EPA without
any further changes.
12.1.3 EPA Review
When EPA is notified that adverse impacts are antici-
pated on a designated river, EPA has a responsibility to
consult with the appropriate agencies and try to resolve
the issues. EPA will also determine if an EIS is neces-
sary under the criteria of 40 CFR 6.508(a)(5) for a
designated or an inventory river. Once the issues are
resolved for either class of river, EPA will issue a
FNSI.
12.2 CONTACTS
12.2.1 Federal Agencies
Glen Eugster, or 215—597—7386
Elizabeth Titus 215—597—1585
United States Department
of the Interior
National Park Service
143 South Third Street
Philadelphia, PA 19106
12.2.2 State Agencies
CONNECTICUT
Department of Environmental 203—566—7404
protection
Planning and Coastal Area Management
Division
71 Capitol Avenue
Hartford, CT 06106
MAI NE
State Planning Office 207—289—3261
State House, Station #38
Augusta, ME 04333
MAS SACHUSETTS
Office of Planning 617—727—3160
100 Cambridge Street
Boston, MA 02202
12—4 November 1983
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NEW HAMPSHIRE
Office of State Planning 603—271—2155
State of New Hampshire
2—1/2 Beacon Street
Concord, NH 03301
RHODE ISLAND
Department of Environmental 401—277—2234
Management
State of Rhode Island
Providence, RI 02908
VERMONT
Agency of Environmental Conservation 802—828-3341
Environmental Protection Division
State Office Building
Montpelier, V I’ 05602
12.3 REFER C
The Wild and Scenic Rivers Act of 1968 , 16 U.S.C. 1274
and subsequent additions.
CEQ. “Memorandum for Heads of Agencies on Interagency
Consultation to Avoid or Mitigate Adverse Effects on
Rivers in the Nationwide Inventory”, Federal Register ,
Vol. 45, No. 175, September 8, 1980, 59190—59192.
USD01, The National Park Service. The Nationwide Rivers
Inventory , Washington, D.C., January 1982.
November 1983 12—7
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Farmland Protection
Policy Act
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FARMLAND PROTECTION POLICY ACT
13.0 LEGISLATIVE/REGULATORY FRAMEWORK
13.0.1 Farmland Protection Policy Act, 1981
The Farmland Protection Policy Act of 1981 [ PL 97—98
Subtitle I] requires Federal agencies to evaluate
adverse effects of Federal programs on the preservation
of farmland and to consider alternative actions that
could lessen such adverse effects. This evaluation must
be based on criteria to be established by the U.S.
Department of Agriculture (USDA). The Act also requires
that Federal programs be compatible with State, local
and private programs and policies to protect farmland.
Farmland as defined by the Act includes four categories
as follows.
• Prime farmland — land that has the best combination
of physical and chemical characteristics for
producing food, feed, fiber, forage, oilseed, and
other agricultural crops with minimum inputs of
fuel, fertilizer, pesticides and labor.
• Unique farmland — land other than prime farmland
that is used for production of specific high—value
food and fiber crops.
Farmland of statewide or local importance —
farmland, other than prime or unique farmland, that
is of statewide or local impor tance for the
production of food, feed, fiber, forage, or oilseed
crops.
These are generally equivalent to agricultural land
types defined in 7 CFR 657 regarding the Important
Farmlands Inventory being prepared by USDA Soil
Conservation Service (SCS).
Federal agencies are also required to bring their
policies into conformance with the Act with the
assistance of USDA.
13.0.2 USDA Proposed Rule, Farmland Protection Policy [ 7 CFR
6581
On July 12, 1983, SCS issued a proposed rule to
implement the Farmland Protection Policy Act. This rule
establishes criteria for evaluating the value of
farmland using a point system. It also provides for
technical assistance from SCS and from the Forest
November 1983 13—1
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Service in determining the applicability of the Act to a
particular site and in evaluattng protection issues,
developing alternatives and resolving conflicts.
13.0.3 EPA Policy to Protect Environmentafly Significant
Agricultural Lands, September 8, 1978
This memorandum documents EPA’S policy “to protect the
nation’s environmentally significant agricultural land
from irreversible conversion to uses which result in its
loss as an environmental or essential food production
resource.”
The policy sets forth specific directives for agency
action, as follows:
• Specific 201 project decisions involved in the
planning, design and construction of sewer
interceptors and treatment facilities shall consider
farmland protection.
• Direct and indirect impacts on agricultural land
shall be determined and mitigation measures
recommended in environmental assessments.
Interceptors and collection systems should be
located in environmentally significant agricultural
land only if necessary to eliminate existing
discharges and serve existing habitation.
In EPA’S policy to protect environmentally significant
agricultural lands, seven agricultural land types are
defined. Types 1 through 4 are based on definitions set
forth by the USDA in (7 CFR 657]. Land types 5, 6, arid
7 are classified as significant in relation to their
role in an EPA—required program. Environmentally
significant agricultural lands include:
• Prime Farmland - land with the best combination of
characteristics capable of economically producing
sustained high yields of crops when treated or
managed. While based on a variety of site
characteristics, the key to these lands is high
productivity.”
Unique Farmland — land other than prime farmland
that is used for production of specific high value
food and fiber crops. Examples of such crops are
cranberries, fruits, vegetables, and tree nuts.
13—2 November 1983
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• Additional Land of Statewide Importance — land
which, with proper treatment or management, may
produce crops of high yield. These lands are
individually identified by each New England state.
Land of this type may produce as high a yield as
‘prime” lands but may have severe limitations which
reduce the choice of plants or which require very
careful management, or both.
• Additional Farmland of Local Importance - land riot
identified as having statewide or national import-
ance but, due to a range of factors, has local sig-
nificance. These lands are identified by the local.
agencies concerned. Examples include agricultural
lands owned by a town and leased back to farmers as
a conservation district.
• Farmlands In or Contiguous to Environmentally
Sensitive Areas — such as floodplains, wetlands,
aquifer recharge zones or natural scientific study
areas; these farmlands play a crucial environmental
buffer role to prevent development encroachment on
environmentally sensitive areas. The lands, in many
cases, are categorically included in land types 1
through 4. Examples of these lands are along the
length of the Connecticut River Valley, as well as
in many other locations.
• Farmlands of Waste Utilization Importance — which
may serve in the land treatment process, be used for
composting activities or for controlled beneficial
application of sewage sludges or other wastes. This
practice occurs in New England, although to a lesser
degree than in other regions of the country.
• Farmlands With Significant Capital Investments In
Best Management Practices — which serve as elements
of an area’s (or state’s) soil erosion and non—point
source pollution control plans. These lands are
included so as not to interfere with the investments
that other agencies have made in programs, such as
Agricultural Stabilization and Conservation Service
erosion control or animal waste handling projects or
208 area—wide management programs.
13.0.4 CEQ Memorandum for Reads of Agencies, August 11, 1980
This memorandum was written to alert Federal agencies to
the need and opportunities to analyze agricultural land
impacts more effectively during planning studies and
under NEPA.
November 1983 13—3
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The memorandum stated that recent studies by the General
Accounting Office and CEQ had indicated that Federal
agencies had not adequately accounted for impacts on
agricultural land through the environmental assessment
process.
Until such time as the SCS regulations to Implement the
Farmland Protection Policy Act are promulgated, EPA will
continue to follow its 1978 policy and comply with the
1980 CEQ memorandum. It should be noted that these
procedures are basically consistent with the new
regulations.
13 • 1 1VIRO TAL f1EW PRO EDUR UNDER 205 (g)
The major steps for complying with EPA’S agricultural
lands policy are shown in Figure 13.1 and discussed
below.
13.1.1 Procedures During Facilities Planning
The State should assure that the Grantee and its
consultant are aware of the requirements to identify
agricultural lands at the outset. The Grantee should
contact the SCS to determine if prime or unique
agricultural lands have been mapped in the project area.
Nationally (through 7 CFR 657), the SCS has been charged
with the responsibility of the identification and
classification of prime agricultural soils. This
assessment work is progressing at varying rates for each
state, and complete coverage of New England will not be
attained for many years to come. Therefore, the SCS may
or may not have surveyed agricultural lands in a
Bpecif Ic project area. In cases where SCS has not yet
performed studies, EPA can request that SCS undertake
one, and SCS will try to fulfill the request.
For maximum efficiency, it is recommended that the State
try to coordinate with the State Conservationist of SCS
to:
find out where inventories have been completed or
are underway (this will help target areas where
prime agricultural lands are already identified as a
concern and will assist Grantees in finding out what
work has or hasn’t been done in their study area);
and
• try to Influence SCS’s sequence of undertaking
studies by making SCS aware of the sequence of
projects on the 201 priority list.
13—4 NOvember 1983
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If environmentally significant agricultural lands are
present in the planning area, the EID should:
• identify them by mapping their location, classify
them, and discuss their significance,
• assess and evaluate both direct and indirect effects
of the proposed action,
• avoid or mitigate those adverse effects identified
to the extent possible, as stated in EPA’S policy to
protect environmentally significant agricultural
land [ 40 CFR 6.302(c)] , and
• suggest alternatives which minimize or avoid direct
or indirect effects to these agricultural lands.
13.1.2 Review of EID and Preparation of Preliminary BA by State
The State will review the EID to make sure that
agricultural lands have been identified, that impacts to
them have been adequately assessed, and that adverse
impacts have been avoided or mitigated to the maximum
extent possible.
If significant agricultural lands are present, the
preliminary EA should discuss the extent of direct or
indirect impacts to such lands and propose. mitigation
measures.
The preliminary EA should also include a determination
that any interceptors and collection systems located on
environmentally significant agricultural lands are
nec essary to serve existing habitation or eliminate
existing discharges.
13.1.3 EPA Review
EPA will review the preliminary BA and any other related
material. If no adverse impacts to prime agricultural
lands are anticipated, EPA will finalize the EA and
issue a FNSI. If significant adverse impacts are
anticipated, EPA will determine whether an EIS is
necessary under the criteria of 40 CFR 6.508 (a) (4).
November 1983 137
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13.2 3 ITACTS
13.2.1 Federal Agencies
United States Department of Agriculture
Soil ConservatLon Service Offices, State
Conservationists
CONNECTI JT
Philip H. Christensen 203—429—9361
US Department of Agriculture
Soil Conservation Service
Mansfield professional park
Route 44A
Storra, CT 06268
MAINE
Billy R. Abercrombie 207—866—2132
US Department of Agriculture
Soil Conservation Service
USDA Building
University of Maine
Orono, ME 04473
MASSACHUSETTS
Rex 0. Tracy 413—256—0441
US Department of Agriculture
Soil Conservation Service
45]. West Street
Amherst, MA 01002
NEW HAMPSHIRE
Richard L. porter 603—868—7581
VS Department of Agriculture
Soil Conservation Service
Federal Building
Durham, NH 03824
RHODE ISLAND
Richard N. Duncan 401—828—1300
US Department of Agriculture
Soil Conservation Service
46 Quaker Lane
West Warwick, RI 02893
VE 40NT
John C. Tichner 802—951—6795
US Department of Agriculture
Soil Conservation Service
96 College Street
Burlington, VT 05401
13—8 November 1983
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13.2.2 State Agencies
Each New England state is serviced by Regional Soil
Conservation Districts. Contact the SCS office above
for the appropriate state/local contact.
13.3 REFER 1C
The Farmland Protection Policy Act , 7 U.S.C. 4201.
USDA, Soil Conservation Service. “Prime and Unique
Farmlands,” Code of Federal Regulations , Title 7, Part
657, 548—551. (Source: 43 FR 4031, January 31, 1978).
USEPA. EPA Policy to Protect Environmentally
Siginificant Agricultural Lands , Statement from the
Administrator €0 Assistant Administrators , Regional
Administrators and Office Directors, September 8, 1978.
CEQ. “Memorandum for Heads of Agencies on the Subject
of Analysis of Impacts on Prime Agricultural Lands in
Implementing the National Environmental Policy Act,”
Federal Register , Vol. 45, No. 175, September 8, 1980.
59189—59192.
SCS. “Farmland Protection Policy,” Proposed Rule,
Federal Register , Vol. 48, No. 134, July 12, 1983,
31063—31866.
november 1983 13—9
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Regional Groundwater
Review Procedures
For Construction Grants
-------
REGIONAL GEGUND WATER REVIEW PROCEDURES
FOR CONSTRUCTION GRANTS
14.0 LEGISLATIVE/REGUlATORY FRAMEWORK
14.0.1 The Clean Water Act
Section 201 of the Clean Water Act as amended requires
the application of Best Practicable Waste Treatment
Technoldgy (BPWTT) to wastewater construction grants
projects. Section 304(d) (2) of the Act requires the EPA
Administrator to publish information from time to time
on alternative waste treatment management techniques and
systems available to implement Section 201.
Pursuant to these requirements, EPA published a 1976
notice in the Federal Register [ 41 FR 6190] which set
forth criteria for BPWTT for alternatives employing land
application techniques and land utilization practices.
These criteria, which are based on resulting groundwater
quality, are different depending on the use of the
groundwater as follows:
• Case I: the groundwater can potentially be used
for drinking water supply.
• Case II: the groundwater is used for drinking
water supply.
Case III: the groundwater will be used only for
purposes other than drinking water
supply.
In Case I areas the groundwater must meet the standards
for chemical quality and pesticides specified in the EPA
Manual for Evaluating Public Drinking Water Supplies.
In Case II areas groundwater must meet Case I standards
as well as bacteriological standards specified in the
EPA Manual. Groundwater criteria for a specific Case
III area are established by the Regional Administrator
based on the present or potential use of the
groundwater. Case designations must be made by the
Regional Administrator in conjunction with State
officials on a site—by—site basis.
14.0.2 Region I Siting Policy
The Water Supply Branch in EPA Region I reviews the land
application siting analyses for wastewater construction
grants projects. Each project is evaluated on an
November 1983 14—1
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individual basis in accordance with the following
general policy requirements:
• The choice of potential sites for detailed study
must be based upon a reasoned approach.
Site selection from among alternatives must include
consideration of the significance of the affected
groundwater resource in terms of local and regional
water supply.
• Areas extending downgradient from the disposal site
to the hydrologic discharge boundary will be
considered Case III unless the level of treatment
chosen will result in the maintenance of Case I or
II standards.
• A local municipality’s conscious decision to forfeit
an existing or potential drinking water supply and
apply for a Case III determination will generally be
supported by EPA if, based on a water resources
analysis, the municipality shows that adequate
alternative water resources are available to supply
existing and future water supply needs on a local,
and in some instances a regional, basis.
14.1 VIRONM TAL REVIEW PROC )UR UNDER 205 (g)
The recommended steps for complying with Region I’ S
groundwater procedures for site selection are shown in
Figure 14.1 and summarized in the following paragraphs.
14.1.1 Site Selection
When it is determined during the facilities planning
process that land application alternatives warrant
detailed study, the initial groundwater analysis should
be submitted to the State as part of the EID. An
adequate groundwater analysis should include:
• a list of all potential sites available to the Town,
• a determination of hydraulic capacity at each
potential site,
• a preliminary groundwater flow directional analysis
at each viable site,
• a characterization of the groundwater resource
downgradient of each viable site in terms of
14—2 November 1983
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drinking water significance, that is, whether the
groundwater is either an existing or a potential
future supply source, and
a detailed site alternatives comparison in terms of
relative impacts to significant groundwater
resources. This may require a quantitative water
resources analysis in which drinking water resource
availability at both the local and regional levels
is evaluated.
State water supply staff responsible for the initial
review may wish to consult with EPA when determining the
specific testing and modeling requirements of a specific
site analysis. These requirements should be based upon
the initial site characterization.
14.1.2 Early Case Determination
Once a land application site has been selected and
approved by the State, it is recommended that the
Grantee and State request from EPA an early
determination of which BPWTT Case applies to the site.
This will allow EPA to advise the Grantee of the
documentation and testing that will be required during
design, particularly if a Case III determination by the
Regional Administrator is required.
14.1.3 Case Determination
The Grantee, following design, must apply to the
Regional Administrator for a Case determination for the
proposed site and the area downgradient. The Regional
Administrator must make this determination with “the
objective of protecting the groundwater for use as a
drinking water supply and/or other use as appropriate,
and preventing irrevocable damage to groundwater.”
In the event that a Case III determination is approved,
the Regional Administrator’s approval to begin
construction will be conditioned on local implementation
of adequate legal and institutional safeguards to ensure
that the Case III area’s groundwater will not be used
for drinking water purposes. The determination shall
include provisions for monitoring the effect on the
native groundwater.
November 1983 14—5
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14 • 2 COHTACTS
14.2.1 Federal Agencies
Steven Koorse 617—223—6486
Environmental Engineer
Water Supply Branch
Environmental Protection Agency
J.F. Kennedy Federal Building
Boston, MA 02203
14.2.2 State Agencies
CONNECTICUT
Ray Jarema, Acting Chief 203—566—3110
Water Supplies Section
Connecticut Department of Health
Services
79 Elm Street
Hartford, CT 06115
MAINE
dough Toppan, Manager 207—289—3826
Drinking Water Program
Division of Health Engineering
Department of Human Services
157 Capital Street
Augusta, ME 04333
MASSACHU SETTS
Ilyas Bhatti, Director 617—292—5500
Division of Water Supply
Department of Environmental
Quality Engineering
One Winter Street
Boston, MA 02108
NEW HAMPSHIRE
Bernard D. Lucey, P.E. 603—271—3139
Acting Chief
Water Supply Division
New Hampshire Water Supply and
pollution Control Commission
P.O. Box 95, Hazen Drive
Concord, NH 03301
14—6 November 1983
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RBODE ISLAND
John Hagopian, Chief 401—277—6867
Division of Water Supply
Rhode Island Department of Health
75 Davis Street
Providence, RI 02908
VERMONT
David Butterfield, Chief 802—862—5701 x256
Groundwater Management Section
Department of Water Resources &
Environmental Engineering
Vermont Agency of Environmental
Conservation
State Office Building
Montpelier, V I ’ 05602
14.3 RR C
The Clean Water Act of 1972 33 U.S.C. 1344 and
subsequent additions.
USEPA. Manual for Evaluating Public Drinking Water
Supplies — A Manual of practice . Office of Water and
Hazardous Materials, Water Supply Division, reprinted
1975. EPA—430/9—75—011.
USEPA. A1ternative Waste Management Techniques for
Best Practicable Waste Treatment . Federal Register ,
Vol. 41, No. 29, February 11, 1976, 6190—6191.
November 1983 14—7
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Direct And Indirect Impacts
-------
DIRECT AND INDIRECT IMPACTS
15.0 LEGISLATIVE/REGULATORY FRAMEWORK
15.0.1 CEQ Regulations 140 CFR 1500—15081
CEQ’s 1978 NEPA regulations require that environmental
impact statements address both direct and indirect
effects of proposed actions. The regulations include
the following definitions of “effects”. Effects
include:
• direct effects which are caused by the action and
occur at the same time and place,
• indirect effects which are caused by the action and
occur later in time or are further removed in
distance but are still reasonably foreseeable.
Indirect effects may include growth—inducing effects
and other effects related to induced changes in the
pattern of land use, population density or growth
rate, and related effects on air and water and other
natural systems, including ecosystems.”
The regulations go on to note that the terms “effects”
and “impacts” are synonymous.
15.0.2 EPA’S Rules and Regulations [ 40 CFR 6]
EPA’S 1979 Implementation procedures on the National
Environmental Policy Act [ 44 FR 64177] adopted CEQ’s
definitions for direct and indirect effects.
EPA’S 1983 Proposed NEPA Review Procedures (48 FR 1014]
continue to use the CEQ definitions. These regulations
[ 40 CFR 6.506(b)(5)] stress the need for screening
alternatives with respect to significant direct and
indirect environmental effects.
15.0.3 EPA Policy
In June 1975 EPA published Program Requirements
Memorandum 75—26 (PPM 75—26) on indirect impacts. From
1975 to 1982 this was the essential document covering
EPA’S policy on indirect impacts and included examples
of measures for mitigating indirect effects as well as
provisions for the Regional Administrator to withhold
grants for wastewater treatment facilities when indirect
impacts “can reasonably be anticipated” to contravene an
environmental law or regulation, plan or standard.
November 1983 15—1
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In 1982 EPA cancelled all Program Requirements Memoranda
(includng PRM 75—26) upon publication of a new document
entitled Construction Grants 1982 (CG—82).
Chapter 3, Section 3.2.10 of CG—82 on Direct and
Indirect Impacts and Section 3.2.11 on Mitigating
Padverse Impacts reiterates the basic points made in PRM
75—26. Section 3.2.10 also gives several examples of
direct and indirect impacts (See Attachment 15—1).
Section 3.2.12 identifies indirect impacts which may
result in the need for an EIS.
15.1 VIRONM TAL RicYIliW PR0CEDUR UNDER 205(g)
15.1.1 EID Preparation
In preparing the EID, the Grantee must develop a
knowledge of the existing environment and the direct and
indirect effects of the proposed facility on that
environment. Impacts may be adverse or beneficial. If
the impacts are adverse, a key determination is the
severity and significance of the impact.
Direct impacts, such as land disruption for an
interceptor sewer or a treatment plant, are easily
envisioned. Indirect impacts, which can also be of
great importance to the environment, are more difficult
to predict. As a rule of thumb, the following types of
facilities and/or environmental conditions will have the
potential to generate indirect impacts:
construction of a new or expanded treatment facility
to serve (directly or with a potential through
expansion) sewer ing needs in excess of needs
generated by present development within the service
area,
construction or replacement of collection facilities
to serve, or with a potential to serve, areas where
development presently is constrained by topography,
soil conditions, sewer moratoria, zoning, or local
or state regulations requiring sewers,
construction of collection or treatment facilities
to serve areas adjacent to or including sensitive
areas such as wetlands, water bodies, groundwater
recharge areas, flood—prone areas, archaeological,
historic sites or prime agricultural lands.
15-’2 November 1983
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The Environmental Assessment Manual prepared by Region I
of EPA discusses impact evaluations and can be used as a
guide in determining impacts and evaluating their
significance.
15.1.2 Review of BID and Preparation of Preliminary BA by State
The State must review the BID for adequacy and prepare a
preliminary EA which identifies:
• major direct and indirect impacts,
• the significance of these impacts,
• any contravention of any existing Federal, State, or
local environmental law or regulations, or any plan
or standard required by such laws or regulation
(this has particular application to the areas
covered by other chapters of this manual),
• any induced development which may result from the
various alternatives evaluated,
the significance of land use development which can
be attributed to the proposed action alternative,
• any measures proposed to mitigate indirect impacts.
15.1.3 EPA Review
EPA is responsible for determining that the preliminary
EA submitted by the State covers all important impacts
and properly assesses the severity of the impacts and
methods for their proposed mitigation. If the impacts
are not significant, EPA will issue a FNSI. Where EPA
determines the impacts are significant and criteria for
preparing an EIS (40 CFR 6.508) are met, EPA will issue
a Notice of Intent to prepare an EIS.
15 • 2 NTACTS
15.2.1 Federal Agencies
Roger P. Duwart 617—223—3992
NEPA and Public participation
Coordinator
Municipal Facilities Branch
Environmental Protection Agency
Region I
J.F.K. Federal Building
Boston, MA 02203
November 1983 15—3
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15.2.2 State Agencies
Responsible state agencies having their own
environmental impact review legislation may be sources
of assistance in evaluating direct and indirect impacts.
15.3 RRFRR CES
CEQ. “Regulations on Implementing National Environ-
mental Policy Act procedures.” Federal Register , 40 CFR
1500, Vol. 43, November 29, 1978, 55990 and subsequent
additions.
USEPA. “Implementation of procedures on the National
Environmental Policy Act,” Federal Register , 40 CFR 216,
Vol. 44, No. 216, November 6, 1979, 64177—64193.
USEPA, Office of Water program Operations (WR—547),
Construction Grants 1982 (CG—82) , Interim Final.
Washington, D.C.: 430/9—81—020, July 1982.
USEPA. “National Environmental policy Act; Environ-
mental Review procedures for the Wastewater Treatment
Construction Grants Program, proposed Rule,” Federal
Register , 40 CFR 6, Vol. 48, No. 5, January 7, 1983,
1014—1020.
15—4 November 1983
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ATTACHMENT 15-1
3.2.10
DIRECTAND Assess in your
INDIRECT facilities plan
IMPACTS both direct
(primary) and
indirect (secondary) environmental
impacts of the principal and selected
alternative. Direct impacts are
caused by construction, operation or
maintenance of the treatment works and
may include for example:
o Disruption of traffic, business
or other daily activities during
construction;
o Damage to historical, archaeolog-
ical, cultural or recreational
areas during construction;
o DIsturbance of sensitive
t.osystems such as wetlands and
habitats of endangered or threatened
species during construction;
o Damage and pollution of surface
waters due to erosion during
construction;
o Impacts on water quality from
effluent discharge during operation;
o Displacement of households,
businesses, or services; and
o Damage to sensitive ecosystems
(wetlands, habitats of endangered
species) and ë’nvironmentally protected
areas (parks, historic sites) that
result from changes in population and
land uses; and
o Socioeconomic pressures .for
expansion of existing facilities
(housing, schools, highways) and
services (police, fire, medical
emergency) resulting from induced
changes in land use and population.
The environmental analysis should
give special attention to indirect
impacts to determine whether they
will violate Federal, State or local
laws.
3.2.11
MITIGATING Earlier sections
ADVERSE have discussed
IMPACTS real or potential
adverse environ-
mental impacts. Wherever possible,
avoid or minimize adverse impacts.
Where adverse environmental impacts
are unavoidable, discuss methods, both
structural and nonstructural , to
mitigate them. Such actions may
I nd ude:
Structural
o Discharge of pollutants, noise or
visual impacts.
o Changes in design,
location of facilities;
size or
Indirect impacts are caused by
development made possible by the
project and may include for example:
o Changes in the rate, density,
location or type of development,
including residential , comercial or
industrial; changes in the use
of open space or other land;
o Increased air, water, noise
pollution, or solid waste from
the induced changes in population and
land use;
o Rerouting of interceptors to
avoid sensitive areas;
o Staging or orderly extension of
sewer service;
o Screening for noise or aesthetic
purposes;
o Systems for odor or aerosol
control;
o Cultural resource
including artifacts or
historical data.
rec overy
important
Source: U.S.EPA, Construction Grants 1983
15—5
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Nonstructural
o Development and enforcement of
sewer use regulations;
o Protection of environmentally
sensitive areas by local ordinance;
oModification of zoning
ordinances, land use or developc ent
plans;
o Stormwater runoff control
ordinances; and
o Water conservation programs to
reduce wastewater flows.
Costs to mitigate the direct, adverse
physical impacts of the building or
operation of the treatment works
are allowable for grant funding.
Mitigative measures should be reason-
able in cost and duration and should
relate to the resource affected.
Mitigation of indirect effects is
best accomplished by nonstructural
measures. Although you may select
structural or nonstructural measures
to mitigate indirect impacts, they are
not grant eligible.
Grant assistance will not be
awarded until your facilities plan
provides for mitigation of adverse
effects.
15—6
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Financial Capability
Requirements
-------
FINANCIAL CAPABILITY RRQUIR 4 TS
16.0 LEGISLATIVE/REGULATORY PRAM 1ORK
16.0.1 Clean Water Act — Section 204(b)(1)(B)
The Clean Water Act provides that the EPA cannot approve
any grant for treatment works unless the applicant “has
legal, institutional, managerial, and financial
capability to insure adequate construction, operation,
and maintenance of treatment works throughout the
applicant’s jurisdiction “.
16.0.2 Construction Grants Regulations 140 CFR 35.2104 and
35 .2107]
The EPA has implemented the financial capability
requirements of the Clean Water Act in the interim final
construction grants regulations. These regulations
include the above requirements and add the requirement
that, if the project will serve two or more
municipalities, the Grantee submit an executed
interinunicipal service agreement for the financing,
building and operation of the project. The requirement
for the agreement may be waived if the Grantee can
demonstrate:
• that such an agreement is already in place;
• evidence of historic service relationships; or
• that the financial strength of the provider agency
is adequate to continue the project without
particpation of one of the proposed customer
agencies (40 CFR 35.2107].
EPA will publish its financial capability policy with
the final construction grants regulations. The policy
will require that, at the time of application for a Step
3 or Step 2 + 3 grant award, the Grantee demonstrate
that it has the legal, institutional, managerial, and
financial capability to construct, operate, and
maintain the proposed facility. To do so, the Grantee
must answer the following questions:
• What is proposed in the Facilities Plan?
November 1983 16—1
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• What roles and responsibilities will local
governments have?
• How much will the facilities cost at today’s prices?
• How will construction and operation of the
facilities be financed?
• What are the annual costs per household?
The information to respond to these questions is
generally produced as part of the facilities planning
report.
In addition, the Grantee must submit an intermunicipal
service agreement and a letter of certification, signed
by the responsible municipal official, stating that the
Grantee has analyzed costs and impacts, and has the
capability to finance and manage the facilities.
16.1 IVIRONM PAL REVIEW PROCEDURES UNDER 205 (g)
E ike the other environmental requirements in this
Manual, the financial capability review should occur
early in the planning process, should influence the
development and evaluation of alternatives, and should
be an integral part of the decision making and public
participation process.
The EPA has produced a guidebook to assist states and
communities in evaluating whether they have the
capability to undertake a project. The Financial
Ca ability Guidebook contains a series of worksheets
which structure an examination of the financial and
institutional factors necessary to answer the five
questions EPA requires be answered.
In addition, the worksheets provide a means of assessing
the community’s financial health so that the responsible
municipal official can certify the financial capability
of the municipality. The forms in the guidebook are
optional; that is, they do not have to be used. They
do, however, provide a useful method for assuring that
the appropriate factors have been examined. Individual
states are able to require additional information or a
different format.
16.1.1 Reviev During Facilities Planning
Prior to initiation of facilities planning, the states
are encouraged to screen projects for potential
problems. EPA has distributed a “potential problem
16—2 November 1983
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projects” list to each state using Needs Survey
information and EPA—developed criteria for identifying
problem projects. If serious problems are found, the
State may ask assistance of EPA in analyzing the
financial problems and suggesting potential solutions
during the development of the Facilities Plan.
Early in the facilities planning process, when
alternatives are being developed and screened, a
preliminary financial analysis should be performed by
the Grantee. At this stage, the purpose of the analysis
should be to determine whether some or all of the
alternatives are likely to be too costly. The analysis
should not be done in great detail, just enough to
evaluate the approximate total and per household
costs. This information should be submitted to the
State. The State may again use the criteria developed
by EPA to help assess the financial capability.
If all of the alternatives appear too costly, it may be
necessary to reexamine the alternatives development.
possible actions include reducing the scope of the
project, examining additional alternatives, reducing the
sophistication (“gold plating”) of the project or
restructuring the financing. The EPA has informational
material on less costly technologies; if a project
appears to be too costly at this stage, consultation
with EPA can forestall problems at a later stage in the
review process.
During the design process, more detailed information on
construction, operation, maintenance and replacement
costs, and financing and user charge arrangements will
be developed. When the Crantee completes the planning
and design process and applies for a Step 3 grant, a
more detailed financial capability analysis must be
prepared and submitted to the State. This will take the
form of answering the five questions listed above,
providing a signed intermunicipal service agreement if
one is necessary, and providing a letter signed by the
responsible official stating that the Grantee has
analyzed the costs and financial impacts of the project,
and that the community has the capability to finance and
manage the facilities. Sufficient documentation
material must be submitted with the analysis to allow
the State to review and certify that the analysis is
complete and properly performed. The documentation can
be in the form of the worksheets provided in the EPA
guidebook, or in a format developed by the State.
If a Step 2+3 grant is involved, the Grantee should
submit the same materials, with the exception that a
November 1983 16—3
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draft intermunicipal service agreement, with indications
that all parties agree, is satisfactory.
Once the State has reviewed and certified the financial
capability analysis, it is sent to EPA. EPA does not
require the backup documentation at that time, only the
answers to the five questions, the service agreement,
and the letter of certification.
16.2 CONTACTS
Roger F. Duwart 617—223—3992
Municipal Facilities Branch
EPA Region I
JFK Federal Building
Boston, MA 02203
16.3 REFER CES
USEPA, Office of Water Program Operations. Financial
Capability Guidebook (Draft), Washington, D.C.:
prepared by Government Research Finance Center,
Municipal Finance Officers Association and Energy and
Natural Resources Practice; Peat, Marwick, Mitchell &
Co., February, 1983.
USEPA. Potential Problem Projects , unpublished list
available at EPA Region I offices.
16—4 November 1983
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Public Participation
Requirements
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PUBLIC PARTICIPATION RBQUIR 4fl4TS
17.0 LWflSLATtVE/REGUIATORY FRPMflIORX
17.0.1 EPA Overall Public Participation Regulations 140 CFR 25)
On February 16, 1979, the Environmental Protection
Agency (EPA) published regulations in the Federal
Register (44 FR 10286] expanding the agency’s commitment
to provide for meaningful public input to programs
carried out under the Clean Water Act, the Safe Drinking
Water Act, and the Resource Conservation and Recovery
Act. The regulations include general provisions which
require open processes of government and efforts to
promote public awareness in the course of making
decisions in programs and activities under the three
acts. Also included are requirements which apply to
specific public participation mechanisms, such as public
hearings and advisory groups. The regulations do not
require the use of any of the specific mechanisms; the
mechanisms must be used only if they are required in
specific program regulations.
Part 25 sets forth minimum requirements and suggested
program elements for public participation in activities
under the three applicable acts. The applicability of
the requirements of this part is as follows:
Basic requirements and suggested program elements
for public information, public notification and
public consultation. These requirements are
intended to foster public awareness and open
processes of government decision—making.
Requirements and suggested program elements which
govern the structure of particular public par tici—
pation mechanisms (for example, advisory groups and
responsiveness sununaries). This part does not man-
date the use of these public participation mechan-
isms. It does, however, set requirements which
those responsible for implementing the mechanisms
must follow if the mechanisms are required.
Requirements which apply to Federal financial
assistance programs (grants and cooperative
agreements) under the three acts.
November 1983 17—1
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Requirements for public involvement which apply to
specific activities such as permit enforcement,
rulemaking, and assuring compliance with
requirements.
17.0.2 Public Participation in the Construction Grants Program
[ 40 CFR 35.917—51 February 16, 1979
To supplement the Part 25 regulations, EP also
published specific requirements which apply to the
construction grants program (44 FR 10300] . These
regulations applied to all grants made between
February 16, 1979 and December 27, 1981. They provided
opportunities for public interest groups, private
citizens, elected officials and members of the business
community to become extensively involved in the
decision—making process during the planning stage and,
to a lesser extent, at the design and construction
stages. They also afforded an opportunity for Grantees
to develop an interested and informed public which was
able to participate in the whole spectrum of water—
related programs.
Prior to the issuance of these regulations, the only
public participation requirement in the development of a
Facilities Plan was that a public hearing be held on the
draft plan. In many cases this was found to be
inadequate, as all of the major decisions (needs,
proposed alternatives, etc.) had already taken place
with little or no public input. Therefore, the new
regulations allowed the public to get involved prior to,
and all the way through, the development of the
Facilities Plan.
17.0.3 Interim Final Construction Grants Regulations
[ 40 CFR 35J May 12, 1982
Under the Interim Final Construction Grants regulations
of May 12, 1982, there is only one requirement specific-
ally related to public participation in the facilities
planning process. It applies at the time of a grant
application and is listed in 40 CFR 35.2040(a) (3) and
40 CFR 35.2040(b)(3). These citations both state that a
grant application must contain a “certification from the
State that there has been adequate public participation
based on State and local statutes.” Moreover, in the
preamble to the regulations, it is made clear that
“because the elimination of Step 1 and 2 grants
effectively prohibits Federal involvement in facilities
planning and design, neither provisions of this subpart
nor of Part 25 apply to activities of a Grantee prior to
submission of a Step 3 grant application.”
17—2 November 1983
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EPA’S NEPA regulations [ 40 CFR 6] do, however, continue
to provide an opportunity to ensure appropriate public
involvement and the May 12, 1982, regulations require
compliance with 40 CFR 6. While Part 6 does not
specifically prescribe public participation activities,
the “responsible official may institute such additional
NEPA—related public participation project procedures as
he deems necessary during the environmental review
process” [ 40 CFR 6.513(c)]
Therefore, EPA Region I is requiring that the minimum
public participation program for NEPA—related activities
leading to the preparation of a FNSI be the following:
• one public meeting when alternatives are largely
developed but before an alternative has been
selected;
• one public hearing prior to formal adoption of the
Facilities Plan.
Exceptions from this minimum will be considered for
small non—controversial projects.
In addition, Region I is urging that each State identify
those projects likely to need more than this minimum
public participation program. This should be done as
early as possible in the facilities planning process.
For those projects requiring more than the minimum, a
proposed program should be sent to Region I in order to
formally institute it as such additional NEPA—related
public participation procedures deemed necessary during
the environmental review process as specified in
40 CFR 6.513(c). This will do away with any question
which might arise as to the authority to require certain
public participation measures in light of the May 12,
1982 construction grants regulations. The Part 25
regulations still apply to any public participation
activities prescribed.
17.1 & VIRONM 4TAL REviEW PROCEDURES UNDER 205 (g)
The major steps for complying with EPA Region I’s policy
on public participation are shown in Figure 17.1 and
discussed below.
These procedures apply to Grantees which began
facilities planning after December 27, 1981 without EPA
grant assistance. Any facilities planning initiated
with EPA grant assistance (and not complete) must still
comply with the public participation regulations in
November 1983 17—3
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existence at the time of the grant award. The
procedures described in the previous Manual,
“Environmental Review under 205(g) — July, 1980,It would
still be applicable to those Grantees.
17 .1.1 Procedures Prior to Initiation of Facilities Planning
Prior to the initiation of facilities planning by a
Grantee, the State should make the Grantee aware of any
public participation requirements. At that time, the
State should decide whether there should be more than
the minimum public participation program, and if so,
require the Grantee to develop the required program as
part of its scope of work. The State would approve the
program and send it to EPA for concurrence and
acceptance as the NEPA—related public participation
measures deemed necessary during the environmental
review. This process will avoid delays in the FNSI
issuance caused by inadequate public involvement in the
environmental review process.
If the State determines, however, that an exception
would be appropriate, this determination should be
forwarded to EPA for approval.
17.1.2 EID Review and Preparation of Preliminary EA by State
The State must certify that adequate public participa-
tion in accordance with state and local statutes has
occurred. In addition, the State must ensure that the
public hearing was properly advertised, must review the
transcript of the hearing and any associated correspond-
ence received from the public or any state or Federal
agencies, and must include this information in the
preliminary EA under Section 6, “Summary of Agency and
Public Consultation” (see standard format in this
Manual).
17.1.3 EPA Review
EPA will review the preliminary EA and any other
pertinent information to determine if the project is
controversial. If there is no controversy and all of
the public participation requirements have been
satisfied, EPA will issue a FNSI.
There is a 30—day comment period, starting from the date
of issuance of the FNSI, during which the public and
interested state and Federal agencies have additional
time to comment on the project. Any comments received
by EPA during that time must be addressed prior to the
17—4 NOvember 1983
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award of any Step 3 or 2+3 grant. EPA will call upon
the State to assist in the development of responses to
any comments that are received.
If significant comments are received, the EA may have to
be revised by the State, and EPA will then re-issue the
FNSI. Another 30-day comment period must take place
prior to EPA taking any further administrative action.
If it is determined that the project is controversial
during EPA’S review of the preliminary EA or upon the
receipt of significant comments during the 30—day
c nment period, then an EIS may have to be prepared.
17.2 CONTACTS
Roger F. Duwart 617—223—3992
NEPA and Public Participation
Coordinator
Municipal Facilities Branch
EPA Region I
JFK Federal Building
Boston, MA 02203
17 • 3 RR 1C
USEPA. “Public Participation in Programs Under the
Resource Conservation and Recovery Act, the Safe
Drinking Water Act, and the Clean Water Act,” Federal
Register , 40 CFR 25, Vol. 44, No. 34, February 16, 1979,
10286—10297.
USEPA. “Grants for Construction of Treatment Works,” 40
CFR 35, Federal Register , Vol. 47, NO. 92, May 12, 1982,
20450—20469.
November 1983 17—7
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Appendix A—
Environmental Assessment
Format
-------
ENVIRORMENTAL ASSESSMENT FORMAT
tUse State Letterhead]
A. PROJECT IDi TIFICATION
Project Name:
Address:
Project Location:
EPA Project No.:
B. SUMMARY OF ENVIRONMENTAL REVIEW
The applicant’s Facilities Plan, Environmental Information
Document, all other supporting documentation (give specific
references), and associated comments submitted in regard to
this project have been reviewed, and, in accordance with EPA
regulations, the findings of our environmental review are
summarized below.
1. Project Description
Describe planning area and outline the proposed project
(length and diameter of sewers and force mains; number,
size and location of pumping stations; location and
description of treatment facilities; alternately, areas
where on—site septic system rehabilitation and cluster
systems will be utilized, etc.). Use maps and figures.
Explain if the project is total or part of a larger
scheme.
Include project duration (i.e. 6 months, 1 year etc.)
and, for segmented projects, a schedule for construction.
Population Data — Give initial or existing and design
year populations for the Planning Area and the Service
Area and the basis for the projection. Note conformity
with projections used in SIP.
Flow Projections — State existing or initial and design
year flows and their basis. Summarize this information
in a table.
Roles and Responsibilities of Local Government - Describe
which entities will own, operate and manage facilities.
November 1983 A—i
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2. Purpose and Need
,A suimnary discussion and demonstration of the need for
the proposed facilities in the planning area and how the
project will solve the problem, with particular emphasis
on existing public health or pollution problems that
exist, including air, surface water (note water quality
classification) and groundwater, stating their severity
and extent. Outline sources of information used to
document the need. Note conformity with the 303(e) Basin
Plan, the NPDES permit and the 208 Plan.
3. Discus iofl of Alternatives
This discussion shall include a brief description and a
comparative analysis of all the feasible alternatives
studied (highlight proposed alternative), as well as
including the no—action alternative, for wastewater
collection, treatment process, site location, effluent
disposal and sludge disposal throughout the study area.
Land application alternatives must be fully discussed.
The alternatives shall be compared with respect to
capital and operating costs (these costs should be
summarized in an attached table).
Discuss significant impacts of alternatives to highlight
major differences between that alternative and the
proposed alternative.
If the proposed alternative is not the most cost-
effective one, fully justify the reason(s) for selecting
it.
4. Impact of Proposed Project on the Environment
Point out environmental impacts, with mitigation, for the
proposed project.
a. Direct Impacts
i. Air Quality — SIP compliance, odors, dust
ii. Water Quality and Quantity
Surface — sedimentation impacts, beneficial
quality improvements.
Groundwater — Case I, II, III
Drinking water supplies — impacts, adequacy
of existing supplies to serve projected
growth.
A—2 November 1983
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iii. Environmentally Sensitive Areas
Floodplains and Wetlands - If impacted,
prepare “Floodplain and/or Wetland
Assessment” and a “Statement of Findings”
in accordance with Appendix A of the NEPA
Regulations. This need not be a separate,
appended document but may be incorporated
here. Be sure to include all information
required of such an assessment.
Prime Agricultural Land
Wildlife Habitat
Stream Modification
Section ‘404/10 Evaluation’
iv. Soclo-Economic Impacts
Present “today’s” costs and state ENR used.
Give total project cost, eligible project cost
(note ineligible items), estimated Federal and
State grants, other funding, local share and
cost to homeowner (see Financial Capability
Requirements, Chapter 16)
Give impacts of project on employment, multi—
use opportunities, uniform relocation and
assistance, parks. Also, list legal and
institutional constraints and required
intermunicipal agreements.
v. Historical/Archaeological Sites and National
Landmarks
vi. Endangered Species
vii. Coastal Zone Management and CBRS units
viii. Wild & Scenic Rivers
b. Indirect Impacts — deal with population growth and land—
use changes included over the long—run by the project.
Present information on present land use,
zoning, etc., and reference population
discussion in item B.l.
November 1983 A—3
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ii.Re—examine 4a list for induced impacts in
those categories.
On a case—by—case basis, each project must be
evaluated to determine if there are other pertinent
topics or categories that are worthy of discussion in
the Environmental Assessment.
5. Mitigation of Environmental Impacts
Summarize mitigation measures discussed in item 4; expand
upon them by explaining how these will be achieved and
monitored (Special Grant Condition or review of Plans and
Specifications). Remember to consider structural and
non—structural methods.
6. Summary of Agency & Public Consultation
a. Describe public participation efforts briefly
(include dates of major public information meetings
and hearings).
b. Describe the public’s significant objections to the
proposed project, if any. Discuss how the plan was
modified to address the objections raised, and, for
outstanding objections, explain why no changes were
deemed necessary.
c. Discuss significant comments received from interested
State and Federal agencies (pro and con). Discuss
how the plan was modified to address the objections
raised, and, for outstanding objections, explain why
no changes were deemed necessary.
7. List of Agencies and Groups Consulted
List agencies and environmental groups consulted in the
development of the Facilities plan and Environmental
Information Document.
C. SIGNATURE(S)
Signature(s) of responsible State official(s) and date
preliminary EA prepared.
A—4 November 1983
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Appendix B—
Common Weaknesses In
Environmental Assessments
-------
COMMON WEAKN SES IN EN VI RONM 1TAL ASSESSMENTS
1. Project Description
• Maps not legible or reproducible.
• Maps not appropriate: need figures which have
sufficient detail to show project location with respect
to state and to show location of pertinent features of
project, i.e. sewers, discharge point, etc. Often two
maps are required.
• Inadequate break—down of project elements.
• Project schedule often missing.
• Consistency with State Implementation Plan for air
quality not addressed.
Flow projections not listed by residential, commercial,
industrial, I/I, institutional sources.
2. Purpose and Need
• Existing situation not adequately described or
documented: need information on soils, groundwater,
health hazards, water quality problems. Sources should
be listed, i.e. surveys, sampling, etc.
The need to meet legal requirement is too often used as
major need for project. Environmental reasons should
be stressed since laws and regulations can be changed
and, in some cases, are if sufficient justification is
given. For example, waivers to certain aspects of on—
site system design codes have been granted if the cost
of compliance outweighs environmental benefits.
3. Discussion of Alternatives
• Differences among alternatives not made clear.
• Alternatives dropped because “not feasible”. The basis
of the conclusion must be presented.
• All alternatives not discussed. Some seemingly Nfar_
out” alternatives appear more attractive when costs and
benefits of more conventional alternatives are
presented to public.
November 1983 B—i
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“No—Action” alternative lightly dismissed. This is
often the solution by default for some of the smaller
communities which have no problems that can be enforced
against. It is important to state the consequences
impartially.
• Costs not current. While the consistency of costs is
important for comparisons, all alternatives should have
up—to-date costs to avoid confusion.
4. Inpact of Proposed Project on the Environaent
• Actual water quality improvement not addressed. Many
projects by themselves will not result in demonstrable
water quality use improvements without other actions
taking place. This should be acknowledged.
Impacts on quantity of water supply omitted. Will
project serve more people than present supply is
capable of serving?
• Alternatives which completely avoid floodplains and
wetlands not adequately described.
• Costs not current.
• Costs not all inclusive.
• Archaeological review done after design or construction
has begun. This will only result in needless delays.
5. MitIgation of Environmental Impacts
Specific measures not listed — this hinders monitoring
and results in omitting needed grant conditions.
Monitoring procedures not identified.
B—2 November 1983
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