THE DEPUTY SECRETARY OF THE INTERIOR WA 8 TO APR 2 7 2018 Memorandum To: Assistant Secretaries Heads of Bureaus and Of?ces NEPA Practitioners From: Deputy Secretz' Subject: Additional Direction for Implementing Secretary?s Order 3355 Purpose: On August 31, 2017, I issued Secretary?s Order 3355 (Order) with the intent of immediately improving the Department?s National Environmental Policy Act (N EPA) review. Speci?cally, the Order instructs each Bureau and Of?ce serving as a NEPA lead agency to prepare Environmental Impact Statements (EIS) that are no longer than 150 pages (3 00 pages for unusually complex projects)1 and to complete each Final EIS within 365 calendar days of publishing the associated Notice of Intent (N OI), unless otherwise approved by the Department.2 The following guidance provides additional directives for implementation and compliance with the Order, 43 C.F.R Part 46, Subpart and 40 C.F.R. 1500-1508. Further Direction: Within 30 days of the effective date of this Memorandum, each Bureau or Of?ce EIS Project Team4 shall submit the following to the Of?ce of the Deputy Secretary and the Director of the Of?ce of Environmental Policy and Compliance (OEPC) by uploading it to the NEPA and Permit Tracking Database (Database):5 1. E18 Project Schedule: a. For each outstanding EIS with a NOI published on or before August 31, 2017, provide a project schedule with a Final EIS completion and Record of Decision Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, Council on Environmental Quality 40 1502.7. 2 See Secretary?s Order 3355 - Streamlining National Environmental Policy Reviews and Implementation of Executive Order 13807, "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects". 3 Implementation of the National Environmental Policy Act of 1969, Department of the Interior, 43 CPR. 46.405. 4 BIS project teams include but are not limited to Departmental NEPA staff, Senior Executive Service members, subject matter experts, contractors, planners, an attorney from the Of?ce of the Solicitor, and others who work on EISs at the field level (EIS Project Team). 5 OEPC will provide each Bureau with access to the Database. 1 (ROD) issuance date of no later than 365 calendar days from the effective date of this Memorandum. The submission should include con?rmation that the EIS will be completed in under 150 pages.6 b. For each outstanding EIS with a NOT published after August 31, 2017, provide a prej ect schedule with a Final EIS completion and ROD issuance date within 365 days of the publication date. The submission should include con?rmation that the EIS will be completed in under 150 pages. 2. Proiects With A Draft In Progress Prior to the Issuance of This Memorandum: a. Projects with a published Draft EIS are exempt from the Order?s page count requirements and do not require a waiver. However, these projects are still subject to the Order?s timelines, which is to be documented in the proj ect?s schedule and uploaded into the Database. b. Projects with a Draft 1318 in the drafting phase that have not been published are subject to the Order?s page count and timelines.7 A waiver may be considered if the Draft BIS has been widely circulated or communicated to cooperating agencies and stakeholders in its current and noncompliant length.8 3. EIS Team and Solicitor Assignments: a. For each EIS, regardless of its current phase in the EIS process, provide the name, title, and contact information for the ?rst line Senior Executive Service (SES) member with line authority over the proposed action, and the other members of the EIS Project Team, by uploading the information into the Database. Contact information shall include a telephone number and an email address.9 b. An attorney in the Of?ce of the Solicitor, based either in the ?eld, regionally, or in Washington, DC, shall be incorporated into each new and existing 1318 Project Team, regardless of the project?s phase. Bureaus shall identify the solicitor and include his/her contact information in the Database. Waiver Guidance: l. Timeliness or Page Limit Waiver Requests: 6 This project schedule requires concurrent compilation and compietion of an Administrative Record and Decision File within the 365 daytime limit set forth in the Order. 7 Order 3355 ?1502.7. 3 See the ?Waiver Guidance? section below for waiver procedures. 9 This directive is not asking for the list of preparers pursuant to 40 CFR. 1502.17, but those responsible for project oversight, management, and compliance with the Order. 2 a. The need for a waiver may arise if an EIS presents challenges that make it unlikely to be completed in under 150 pages or within 365 days of either the Order or the project?s NOT date. ?0 b. If an EIS Project Team identi?es the need for a waiver, it shall provide a detailed description of the need and justi?cation for a ?timeliness? and/or ?page count? waiver on the template provided in Attachment c. To better ensure Departmental consistency, waiver requests shall be submitted to the Office of the Deputy Secretary for review at nepa.depsec@ios.doi.gov.12 Waiver requests will be processed within 20 days of receipt. ?3 This instruction modi?es the Order?s waiver approval process by shifting approval from the Assistant Secretaries to the Of?ce of the Deputy Secretary. d. Projects that qualify under the Fixing America?s Surface Transportation Act14 or the One Federal Decision (OFD) Memorandum of Understanding automatically qualify for a 2 year timeline that allows for 1 year and 9 months to complete the proj ect?s EIS, and 3 months to complete permitting.15 Qualifying projects should note this qualifying status in the Database and project timeline. Such projects are subject to the Order?s page limits but do not otherwise require a timeliness waiver if consistent with the CPD timeline. 2. Unusually Complex a. An EIS may be considered unusually complex based upon the action?s circumstances, and an EIS Project Team may seek a ?timeliness? and/or ?page count? waiver to address these circumstances.16 b. The following considerations, among other factors, may be weighed when determining whether an action rises to the level of unusually complex and merits a waiver. To be considered unusually complex, each factor, taken singly or as a whole, must result in unusual complexity that a reasonable person with knowledge of the facts and the law would discern: i. Nature of Potential Impacts: 1. Whether the type of action is new to a geographic area; ?3 Order 1502.7. This provision applies to all ElSs, both current and future. ?2 Unless otherwise stated, all notices, waiver requests, and communications with the Of?ce of the Deputy Secretary referenced in this Memorandum shall be directed to nepa.depsec@ios.doi.gov. ?3 Waiver requests should be rare, are granted at the discretion of the Deputy Secretary, and are only to be submitted after ensuring that a waiver is truly merited. 1? Pub. L. No. 114-94. 15 Additional guidance for complying with the Fixing America?s Surface Transportation Act and the One Federal Decision Memorandum of Understanding is forthcoming. 16 Order ?1502.7. 2. The subjective nature of the methodology or unavailability of data; 3. Newly established land designations, i. e. Areas of Critical Environmental Concern and Wilderness Areas; 4. The presence of endangered species or special status species; 5. Environmentally sensitive areas; 6. High likelihood of substantial weather impacts on the proposed project; or 7. High likelihood of substantial harm in the event of an incident. ii. Projects That Are Large In Scope or Are Multi-Jurisdictional: Linear projects; Water systems;17 Multiple actions within the scope of the For offshore activities, distance to shorelines, designated use zones, and depth; or 5. Projects crossing State lines requiring multiple amendments to land use plans. Page Limit and Timeline Guidance: The following guidance will help EIS Project Teams plan with the goal of completing an EIS in under 365 days and 150 pages, absent unusual scope or complexity: 1. Upon receiving demonstrated interest from a project proponent, and pre-NOI, it is considered best practice to appraise proponent applications to ensure that they are complete and properly prepared by the proponent. An appraisal may be comprised of a meeting, teleconference, follow?up discussion, or an application review with the proponent prior to accepting an application. An appraisal is not a decisional step, but is intended to con?rm that proponents are ready to proceed; Pursuant to 40 CPR. 1501.6, Bureaus shall include other Federal Agencies with jurisdiction by law or special expertise in the project subject matter as cooperating Agencies, and Bureaus must cooperate at the request of another Bureau; and Two guidance documents are attached to this Memorandum that should help promote Order compliance. The ?rst is titled, EIS Page Length Considerations and Guide?18 and the other is entitled Guidance on the Environment Review Process for a 365-Day Timeline?19. Note that these documents are simply meant to guide compliance with the Order, and Bureaus should utilize their experience and expertise to ?nd solutions that address unique circumstances as they arise. ?7 Water Systems generally refers to water pipelines, canals, irrigation channels, dams, and any other form of water infrastructure or conveyance that impacts multiple stakeholders, jurisdictions, or water rights. 13 Attachment 2. 19 Attachment 3. Contractor Guidance: When a Bureau is using a contractor to prepare an EIS, the Order?s page and time limitations shall be included and adhered to as a material term in each Department solicitation for a Statement of Work, and the subsequent contract for EIS preparation services issued after the date of this Memorandum. Utilizing Time Effectively: 1. To facilitate the implementation of the Order, each Bureau shall review its NEPA policies and procedures to identify opportunities to accelerate the EIS process. In coordination with the Of?ce of the Solicitor and OEPC, each Bureau shall identify best practices for gathering information, coordinating with stakeholders, and preliminary drafting before the publication of a NOI. Within 30 days of the effective date of this Memorandum, each Bureau NEPA coordinator shall provide the Of?ce of the Deputy Secretary and OEPC Director with its pre?NOI best practices via email. The OEPC Director shall aggregate and publish these best practices within 90 days of the effective date of this Memorandum. Attachment 4 contains sample best practices. Bureau NEPA Handbooks: 1. Within 45 business days of the effective date of this Memorandum, Bureau Directors and their NEPA staff shall meet with the Of?ce of the Deputy Secretary and OEPC to identify whether changes are required to each Bureau?s NEPA Handbook to comply with the Order. All approved changes shall be made to Bureau Handbooks Within 15 business days of approval. Bureau Handbook changes shall be implemented as soon as practicable through issuance of an updated Handbook or by using an established, Bureau?speci?c amendment process issuance of a Permanent Instruction Memorandum). If a Permanent Instruction Memorandum is utilized, the Bureau?s Handbook shall be revised and amended as soon as practicable. Judicial Review: This guidance establishes internal Department guidelines only. It does not create any rights, substantive or procedural, enforceable at law by any party. Effective Date: Directives and guidance within this Memorandum are effective immediately upon distribution. Attachment 1 Waiver Template Request for Waiver of Time and Page limits under 8.0. 3355 To: Of?ce of the Deputy Secretary Through: [Bureau Director] From: Supervisor Responsible for the Project] Date: 1. Bureau or Of?ce Name: 2. Title of Document: Document Title 3. Description of Action: Description of the action or project that the NEPA document is analyzing, including the name of the project proponent and cooperating agencies, if applicable. 4. Time waiver: 150 Page waiver: (check all that apply) 5. Description of Reason for Request: For Example: At this time, the project schedule cannot be expedited to meet the new time frames due Therefore, we are requesting a waiver of the schedule requirements and instead propose a Final EIS and ROD date We are requesting a waiver of the 150 page limit, and seek an exception allowing for 3 00 pages. The project is unusually complex Therefore, we seek approval for a 3 00 page EIS. 6. Need and deadline (if any) for issuance of waiver(s) decision: 7. Positions of affected stakeholders: Who is affected by not meeting the timeframe? 8. Other relevant considerations: For Example: Schedule delays and paper length due to project complexity, budget, analysis needs arising 9. Attachments: Ifthe request is for a waiver of the time requirement, attach a copy of the original and the new proposed project timeline with the waiver request. Granted: Date: Denied: Date: Attachment 2 D01 EIS Page Length Considerations and Guide Chapter/Section Standard EIS Complex EIS Number of Pages (150 Max) Number of Pages (300 Max) Executlve 5 10 Summary Purpose and Need 2 5 for Action Proposed Action 2 4 Alternatives (include Table) 10 20 Affected 38 76 Envrronment EnVIronmental 85 1 67 Consequences Mitigation 5 10 Consultatlon and 3 8 Coordination Total 150 300 Appendix to include: Preparers, Index, References, Glossary, and Acronyms Attachment 3 DOI Guidance on the Environment Review Process for a 365-Day Timeline [See Attached] Attachment 4 Pre-Notice of Intent Guidance to Streamline the NEPA Process A Notice of Intent must brie?y: Describe the proposed action and possible alternatives Describe the Agency?s proposed scoping process Provide a point of contact (POC) Prior to publishing a NOI to prepare an EIS pursuant to the Order, CEQ Regulations, and NEPA best practices, Bureaus should have achieved the following: 1. 9:55? Identi?ed an achievable goal, a clearly de?ned proposed action, and a purpose and need statement that can achieve that goal. a. When the action involves a third party proponent, is the proposed project suf?ciently de?ned to provide the facilitating or authorizing agency with the information it needs to prepare a clearly de?ned proposed action, purpose and need, and reasonable alternatives? b. Is the project technically and/or ?nancially feasible? 0. Is the application, as applicable, complete? Identi?ed and collected relevant known background information and data such as GIS layers, historical data, and other environmental documents and studies. Identi?ed what data is missing/needed or other skills needed for analysis. Anticipated issues or concerns. Identi?cation of possible alternative ways to achieve the goal. a. Is it possible to meaningfully evaluate the effects of the proposed action and reasonable alternatives? Suf?cient resources are available to begin and complete NEPA in keeping with the time requirements of OFD, E.O. 13807 or 8.0. 3355 (as applicable). a. Has the agency committed and made available the staf?ng or contracting resources need to begin b. Is the project sponsor ready to begin NEPA, and have they committed suf?cient and appropriate staff, POCs, consulting services, and ?nancial resources to complete If a contractor is used, is there a signed disclosure statement to avoid con?ict of interest? c. Is there suf?cient Agency and sponsor leadership attention to help prioritize tasks and assist in issue resolution? Identi?ed POCs for project proponent and Federal, State, and Tribal agencies that will need to be involved. a. executed with cooperating agencies. Coordinated Work development plan including approved schedule, critical action dates, timelines for consultations, and communications strategy. Determine place, date(s), time(s) for public scoping meetings with/without third? party contractor assistance. Department of the Interior Environmental Impact Statement (EIS) Process Timeline Timeline Varies 1 YEAR 90 days Obtain FWS concurrence with preliminary species list Conduct any required Species surveys/habitat assessments -Some surveys may need to be conducted at specific times of year Biological Opinion (135 days maximum) 50 CFR DURATION Pre-Notice of Intent (NOI) Public comment for NOI and Drafting and publication of Public comment period Mlnimum 90 days Review Period for Agency signs All Authorizations Scoping - 30 days DEIS for DEIS .45 days between publication of Final EIS Record of Decision issued (40 CFR 1506.10lci) Draft EIS and Final EIS minimum 30 days (ROD) no earlier (40 CFR [40 CFR 1506.10 than 3lst day after notice NEPA Process 1. Receive Application (if applicable); Publish NOI intiating Public 1. Complete analysis of data Publish DEIS - EIS must 1. Address and respond Publish - All required permit 2. Review application to determine if complete; Comment and Agency review. [including information received be filed with EPA, which to DEIS comments; Consider agency approvals received 3. Ensure suff ient staffng or contracting resources available to 1. Continue analysis of data during public comment period]; starts the DEIS comment 2. Prepare comments/may complete NEPA) identified during pre-NOI; 2. Continue drafting previous period 3. Coordinate with recieve public E.O. 13307, 82 FR 4- Put together managment, writing, and production 2. Continue drafting the affected sections and begin writing 40 CFR 1506.10(a) cooperating agencies comments 40463 teams; environment and purpose and Environmental Impact (public hearings and applicable 5. Develop project schedule and coordination plan; need; 3. Document- prepared lmeetings) stakeholders; 6. Develop page budget; Continue to develop and in sections/parts, ELM Draft EIS or Land 4. Complete approval 7. Develop draft Purpose and Need; collected needed data. whenever possible; Use Plan must be process; 8. Screen and identify preliminary proposed project alternatives, 3. identify Preferred available for 90 days eliminating unreasonable alternatives or other alternatives Alternative? and share with considered, but dismissed; cooperating agencies, as 9. Identify and begin writing of Affected Environment; applicable; and 10. Determine methodologies for analysis; 4. Complete internal DOI 11. Identify potential environmental impacts-could include planning approval process, studies and resource surveys; Draft EIS for some 12. Identify and collect relevant existing current data; programs may need to be 13. Identify data needed; completed in less than 4 14. Identify issues and concerns that will need to be addressed; months to allow for 90 day 15. Identify points of contact for cooperating agencies and regulatory public comment stakeholders, coordinate with government and non-government period. stakeholder groups, and develop memoranda of agreement as applicable; 16. Determine place, datels), timels) for scoping meetings; 17. Prepare NOI and complete approval process. ESA Define Action Area Develop Biological Assessment Submit Biological Assessment and FWS prepares FWS final 80/ concurrence letter Section 106 identify consulting parties -Work with THPO on areas of potential effect Early investigations to identifying Section 106 properties - Early engagement with stakeholders Invite consulting parties Define Area of Potential Effect and assess adverse effects Identify historic properties Conduct archaeological surveys (Fieldwork may be seasonal) Consultation to resolve adverse effects Sign Programmatic Agreement/Memorandum of Agreement Determinations" Exchange of preliminary information Develop Preliminary Mitigation applicable) or include other information within the NEPA document for public review Mitigation commitments are incorporated into the project Section 404 Determine project impact areas Use EIS NOI to inform public of Preliminary additional USACE Least Environmentally Damaging Practicable Agency determination Permit Conduct wetland delineations (note that fieldwork is seasonal), and comment period and notice of determination with public Alternative (LEDPA) Determination-if needed, submit permit application permit application/public hearings develop draft mitigation plan hearing Other Pre-application Assessment of Resources Submit permit application (if Public Review Address comments. Agency determination 93E Noam gmammam? an. I .-