Coordinating National Historic Preservation Act and National Environmental Policy Act Compliance
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov
April 27, 2012
In Reply Refer To:
8100 (240) P
EMS TRANSMISSION 05/01/12
Instruction Memorandum No. 2012-108
Expires: 09/30/2013
To: All WO and Field Officials
From: Director
Subject: Coordinating National Historic Preservation Act and National Environmental Policy Act Compliance
Program Area: Cultural Resources Management Program and the National Environmental Policy Act
Purpose: This directive restates and emphasizes existing policy and provides guidance on gaining efficiencies in the environmental review process by coordinating procedures for compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA), and for meeting the Bureau of Land Management’s (BLM’s) tribal consultation responsibilities. It also provides answers to questions frequently posed by field offices specific to the relationship between the requirements of NEPA and Section 106 of the NHPA.
Background: The NEPA and NHPA Section 106 implementing regulations both require that agencies coordinate their compliance processes to the extent possible. The Council on Environmental Quality’s NEPA regulations state that, to the fullest extent possible, agencies shall prepare Environmental Impact Statements (EIS) concurrently with and integrated with environmental impact analyses and related surveys and studies required by the NHPA and other environmental review laws and executive orders (40 CFR 1502.25). The Advisory Council on Historic Preservation’s NHPA Section 106 regulations similarly state that agencies should coordinate Section 106 consultation with requirements of other processes, including NEPA (36 CFR 800.2(a)(4), 800.3(b), and 800.8(a)(1)).
Policy/Action: The BLM has independent statutory obligations under NEPA (P.L. 91-190; 83 Stat. 852; 42 U.S.C. 4321 and 40 CFR 1500-1508) and Section 106 of the NHPA (P.L. 89-665; 80 stat. 915; 16 U.S.C. 470f and 36 CFR Part 800), and for Tribal Consultation (NEPA,NHPA,
Presidential Memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments, and related authorities listed in BLM Manual Section 8120). The close coordination of these three distinct processes can create efficiencies, and improve public disclosure of possible impacts of agency decision-making.
The NEPA sets forth a process that provides the agency an opportunity to evaluate alternatives and engage the public. Offices must incorporate into their NEPA analysis available information on potential impacts to cultural, historic and tribal resources and possible mitigation measures gathered through the NHPA Section 106 and Tribal Consultation processes. Offices must complete both the NHPA Section 106 process and Tribal Consultation prior to making a final decision on a proposed action.
It is the policy of the BLM that the procedures for complying with the NEPA, and Section 106 of the NHPA, and meeting tribal consultation responsibilities, shall be coordinated to the extent possible. Coordination will allow the BLM to: (1) conserve resources by gathering information that helps to support all of these requirements at the same time; (2) reduce redundancy and avoid unexpected and unnecessary delays by synchronizing the schedules for meeting these requirements; (3) make it easier for the public and tribes to understand when and how to contribute to the BLM decision making processes for various issues; and (4) reduce litigation liability by ensuring that the requirements of these processes are met in a timely manner.
The Side-by-Side Matrix at Attachment 1, illustrates the procedural, informational, participation, and documentation requirements of NEPA, NHPA Section 106, and tribal consultation. It also shows, in the right hand column, key recommendations for coordinating the processes and successfully meeting compliance requirements prior to making a decision. Note that completing a categorical exclusion for an action may satisfy the BLM’s NEPA obligations, but it will not satisfy the BLM’s NHPA Section 106 requirements.
One of the principal opportunities for coordinating NEPA and NHPA Section 106 compliance is the public notification and comment processes in situations where an Environmental Impact Statement is found to be appropriate. For example, rather than carry out a separate procedure for public notification to meet NHPA Section 106 requirements, the BLM may reference both authorities when publishing a Notice of Intent (NOI) or Notice of Availability (NOA) in the Federal Register and/or a notice of a public meeting in the newspaper. Referencing both statutory processes informs the public of their opportunity to bring forward Section 106-related information, concerns and opinions, as well as broader environmental issues that help to inform the NEPA process. Sample NOI language is provided in Attachment 2.
The Questions and Answers document at Attachment 3 address frequently asked questions by BLM field personnel who have a role in meeting the NEPA and NHPA Section 106 requirements. They address in detail the distinctions and similarities between the NEPA and NHPA Section 106, BLM’s flexibility in meeting those procedural requirements, documenting compliance with NEPA and NHPA responsibilities, and the timing for compliance with the two statutes.
Timeframe: This IM is effective immediately.
Budget Impact: This IM is anticipated to reduce cost to the BLM and land use applicants by increasing the efficiency of environmental reviews and minimizing the legal vulnerability of decisions by helping to ensure that the BLM fully complies with the statutory obligations of both NEPA and NHPA Section 106.
Manual/Handbook Sections Affected: This IM is consistent with existing guidance in the following Manual Sections and Handbooks: 1790, National Environmental Policy Act; H-1790-1, National Environmental Policy Act Handbook; 1610, Land Use Planning H-1610-1, Land Use Planning Handbook; and 8130, Planning for Cultural Resources. Guidance in the referenced Manual Sections and Handbooks will be supplemented by the policy in this IM.
Coordination: Department of the Interior Office of the Solicitor, and the Bureau of Land Management Division of National Environmental Policy Act and Decision Support (WO-210).
Contact: Robin Hawks, Ph.D., (WO-270) at (202) 912-7241, for NHPA Section 106 questions, and Andrew R. Tkach, (WO-210) at (202) 912-7283 for NEPA Questions.
Signed by: Authenticated by:
Robert V. Abbey Catherine Hope Emmett
Director Division of IRM Governance,WO-560
3 Attachments
1- Side-by-Side Chart showing the principal steps for meeting the requirements of Section 106 of the National Historic Preservation Act 106, Tribal Consultation, and the National Environmental Policy Act. (3pp)