SUMMARY OF RELATED ENVIRONMENTAL AND CULTURAL RESOURCES LAWS, RULES, REGULATIONS, AND INSTRUCTIONS

10-1 American Indian Religious 10-3 Archaeological Resources Freedom Act of 1978 (P.L. 95-341) Protection Act of 1979 (P.L. 96-95)

This Act makes it a policy of the This Act supplements the provisions of Government to protect and preserve for the 1906 . The law American Indians, Eskimos, Aleuts, and makes it illegal to excavate or remove Native Hawaiians their inherent right of from Federal or Indian lands any freedom to believe, express, and exercise archeological resources without a permit their traditional religions. It allows them from the land manager. Permits may be access to sites, use and possession of issued only to educational or scientific sacred objects, and the freedom to institutions, and only if the resulting worship through ceremonial and activities will increase knowledge about traditional rights. It further directs archeological resources. Major penalties various Federal departments, agencies, for violating the law are included. and other instrumentalities responsible Regulations (43 CFR 7) for the ultimate for administering relevant laws to disposition of materials recovered as a evaluate their policies and procedures in result of permitted activities state that consultation with Native traditional archeological resources excavated on religious leaders to determine changes public lands remain the property of the necessary to protect and preserve Native . Those excavated from American cultural and religious Indian lands remain the property of the practices. Applicable regulation is Indian or Indian Tribe having rights of 43 CFR 7, ARPA Permitting. ownership over such resources.

10-2 Antiquities Act of 1906 10-4 Archeological and (34 Stat. 225) Historic Preservation Act of 1974 (P.L. 93-291) This Act was the first general act providing protection for archeological Congress amended the Reservoir resources. It protects all historic and Salvage Act to extend the provisions of prehistoric sites on Federal lands and the Act to all Federal construction prohibits excavation or destruction of activities and all federally licensed or such antiquities without the permission assisted activities that will cause loss of (Antiquities Permit) of the Secretary of scientific, prehistoric, or archeological the Department having jurisdiction. It data. It requires the Secretary of the also authorizes the President to declare Interior (Secretary) to coordinate this areas of public lands as National effort and to report annually to the Monuments and to reserve or accept Congress on the program. It permits private lands for that purpose. agencies either to undertake necessary Applicable regulation is 43 CFR 3, protection activities on their own or to Antiquities Act of 1906. transfer to the Secretary up to 1 percent

1 of the total authorized for expenditure on control programs; and to a Federal or federally assisted or encourage and assist the development licensed project to enable the Secretary and operation of regional to undertake the necessary protection control programs.” activities. The Act requires the Environmental 10-5 Bald Eagle Protection Act of Protection Agency (EPA) to publish 1940 (16 U.S.C. 668-668d) national primary standards to protect public health and more stringent national No person within the United States, or secondary standards to protect public any place subject to the jurisdiction welfare (40 CFR 50). States and local thereof, shall possess, sell, purchase, governments are to be responsible for barter, offer to sell, transport, export, or the prevention and control of air import at any time or in any manner any pollution. bald eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof. States, which are divided into air quality control regions, are required to submit The Secretary of the Interior, if State Implementation Plans (SIPs) for determined to be compatible with the EPA approval (40 CFR 51). SIPs preservation of the bald or golden eagle, provide strategies for implementation, can permit the taking, possession, and maintenance, and enforcement of transportation of specimens thereof for national primary and secondary ambient scientific or exhibition purposes or for air quality standards for each air quality the religious purposes of Indian Tribes. control region.

10-6 Clean Air Act (42 U.S.C. EPA’s rules require Federal agencies to 7401) and Amendments of 1970 determine if their proposed actions conform to the appropriate SIPs. The National Primary and Secondary requirement applies to proposed Federal Ambient Air Quality Standards – actions occurring in nonattainment or 40 CFR 50; maintenance areas for: carbon State Implementation Plan Require- monoxide, , nitrogen dioxide, , ments – 40 CFR 51 particulate matter, and sulfur dioxide. Federal actions could include The purposes of this Act are to “protect construction and permitting types of and enhance the quality of the Nation’s activities. The conformity determination air resources so as to promote the public examines the impacts of the direct and health and welfare and the productive indirect emissions resulting from the capacity of its population; to initiate and Federal action. Federal agencies are accelerate a national research and required to take into account only those development program to achieve the indirect emissions for which they prevention and control of air pollution; provide support, can practically control, to provide technical and financial and are under their continuing program assistance to State and local responsibility. Federal agencies making governments for aid in their conformity determinations must provide development and execution of air a 30-day notice for both the draft and

2 final conformity determinations to the policy that programs for the control of appropriate EPA regional office(s), State nonpoint sources of pollution be and local air quality agencies, and, developed and implemented in an where applicable, affected Federal land expeditious manner so as to enable the managers, the agency designated under goals of this Act to be met through the Section 174 of the Act, and the control of both point and nonpoint Metropolitan Planning Office. Federal sources of pollution.” agencies must also make their draft conformity determinations available to The basic means to achieve the goals of the public for a 30-day review. These the Act is through a system of water reviews may be integrated into the quality standards, discharge limitations, NEPA public review process. and permits. The Act authorizes EPA to require owners and operators of point 10-7 (33 U.S.C. source discharges to monitor, sample, 1251 et seq.) and maintain effluent records.

Public Law 92-500 as amended If the of a water body is potentially affected by a proposed action The Clean Water Act strives to “restore (i.e., construction of a wastewater and maintain the chemical, physical, and treatment plant), a National Pollutant biological integrity of the Nation’s Discharge Elimination System (NPDES) water.” To achieve this objective, the permit (Section 402) may be required. Act sets forth the following goals: In most cases, the EPA has turned this “(1) that the discharge of pollutants into responsibility over to the States as long the navigable waters of the United States as the individual State program is be eliminated by 1985; (2) that as an acceptable to the Agency. interim goal there be attained by 1983 water quality which provides for the Similarly, if a project may result in the protection and propagation of fish, placement of material into waters of the shellfish and wildlife, and provides for United States, a U.S. Army Corps of recreation in and on the water; (3) that Engineers Dredge and Fill Permit the discharge of toxic pollutants in toxic (Section 404) may be required. It should amounts be prohibited; (4) that Federal be noted that the 404 permit also financial assistance be provided to pertains to activities in wetlands and construct publicly owned riparian areas. treatment works; (5) that area wide waste treatment management planning Prior to the issuance of either a NPDES processes be developed and or 404 permit, the applicant must obtain implemented to ensure adequate control a section 401 certification. This of source pollutants in each State; declaration states that any discharge (6) that a major research and complies with all applicable effluent demonstration effort be made to develop limitations and water quality standards. technology necessary to eliminate the Certain Federal projects may be exempt discharge of pollutants into navigable from the requirements of section 404 if waters, waters of the contiguous zone, the conditions set forth in section 404(r) and the oceans; and (7) it is the national are met.

3 Section 319 – Nonpoint Source The provisions of 15 CFR 930.30 are Management Programs – was added to provided to ensure that all federally the Clean Water Act by P.L. 100-4. The conducted or supported activities, purpose of this section is to have the including development projects directly States establish nonpoint source affecting the coastal zone, are management plans designed to deal with undertaken in a manner consistent, to the each State’s nonpoint source pollution maximum extent practicable, with problems. Section 319(k) requires each approved State coastal management Federal department and agency to allow programs. States to review individual development projects and assistance applications and 10-9 Comprehensive accommodate, in accordance with Environmental Response, Executive Order 12372, the concerns of Compensation, and Liability Act of the State regarding the consistency of 1980 (CERCLA or ) these applications or projects with the (P.L. 96-510) State nonpoint source pollution management program. The primary objective of the Superfund program is the cleanup of the worst 10-8 Coastal Zone Management abandoned sites in the Act of 1972 (P.L. 92-583) country. Owners or operators of an inactive (uncontrolled) hazardous waste Federal Consistency with Approved site must notify the appropriate State State Coastal Management Programs – official and convey information to them 15 CFR 930 as to the nature (i.e., location, waste present) of the site. States, in turn, It is the stated policy of the Act “to compile this information and submit it to preserve, protect, develop, and where EPA for the development of a national possible, restore or enhance, the inventory of hazardous waste sites. The resources of the Nation’s coastal zone most serious sites will be placed on the for this and future generations.” (NPL). The State and national lists are required to be The Act provides for financial and updated annually. technical assistance and Federal guidance to States and territories for the Sources for cleanup funding include conservation and management of coastal general revenues and excise taxes on resources. and specified chemical manufactures. The purpose/use of the The Act encourages but does not require fund is to aid in the identification, States to develop a coastal zone assessment, and ultimate cleanup of management program. A state program abandoned hazardous waste sites, when would consider such things as those responsible either no longer exist, ecological, cultural, historic, and esthetic are unidentifiable, or lack the necessary values, as well as economic development funds for cleanup. needs.

4 10-10 Endangered Species Act of A list of endangered, threatened, 1973 (P.L. 93-205) or candidate species occurring in the project areas. What impacts, It is the purpose of this Act to provide if any, the project could have on protection for animal and plant species endangered fish and wildlife and that are currently in danger of extinction their habitat. (endangered) and those that may become so in the foreseeable future (threatened). Action or project features included to enhance, mitigate, or Section 7 of this Act requires Federal reduce adverse impacts to agencies to ensure that all federally threatened or endangered species. associated activities within the United States do not have adverse impacts on A description of the formal and the continued existence of threatened or informal consultation with the endangered species or on designated FWS and the FWS’s Biological areas (critical habitats) that are important Opinion, if appropriate. in conserving those species. Action agencies must consult with the U.S. Fish The “Alternatives Including the and Wildlife Service (FWS) (or NOAA- Recommended Plan” chapter should Fisheries), which maintains current lists include any threatened and endangered of species that have been designated as species mitigation or enhancement threatened or endangered, to determine project features included in the proposed the potential impacts a project may have alternative and the reasonable on protected species. alternatives.

Section 9 of the Act prohibits any person The “Affected Environment and subject to United States jurisdiction to Environmental Consequences” chapter possess, sell, deliver, carry, transport, or should compare threatened and ship any species listed under this Act, endangered species impacts for the except by authorized permit. proposed alternative, the “Without Project (no action)” alternative, and all The FWS has established a system of reasonable alternatives. If a threatened informal and formal consultation or endangered species is located within procedures. FWS preparation of a the project area and is affected by the “Biological Opinion” will conclude project, it may be desirable to attach a formal consultation. The result of more detailed endangered species informal or formal consultations with the assessment to the end of the EA or EIS. FWS under Section 7 of the Endangered Species Act Amendments of 1978 Additional detail on Endangered Species should be described and documented in Act compliance is found in the Environmental Assessment (EA) or Reclamation’s ESA Handbook. Environmental Impact Statement (EIS). This should include:

5 10-11 Executive Order 11514 completing their inventories (codified as (amended by Executive part of 1980 amendments to the National Order 11991 - Protection and Historic Preservation Act). Enhancement of Environmental Quality, 1977) 10-13 Executive Order 11988 (Floodplain Management, 1977) This Executive Order directs Federal agencies to initiate measures needed to requires a construction agency to: direct their policies, plans, and programs so as to meet national environmental “. . . avoid to the extent possible goals. the long- and short-term adverse impacts associated with the Federal agencies are responsible for occupancy and modification of developing procedures (i.e., public floodplains and to avoid direct hearings, information on alternative and indirect support of floodplain courses of action) to ensure the provision development wherever there is a of timely public review and practicable alternative . . .” understanding of Federal plans and within the 100-year flood programs with environmental impact in elevation. order to obtain interested party views. The purpose of this directive is to avoid, This order directs the Council on where practicable alternatives exist, the Environmental Quality (CEQ) to short- and long-term adverse impacts develop regulations requiring EISs to be associated with flood plain development. more concise, clear, and to the point, and therefore, more useful to the Federal agencies are required to reduce decisionmakers. CEQ has also issued the risk of flood loss; minimize the regulations for implementing the impact of floods on human safety, procedural provisions of NEPA health, and welfare; and restore and (40 CFR 6). preserve the natural and beneficial values served by flood plains in carrying 10-12 Executive Order 11593, out agency responsibility. 1971 (Protection and Enhancement of the Cultural For proposed Federal flood plain Environment) (16 U.S.C. 470) projects, where an EIS is required, the agency shall consider alternatives to This Executive Order requires Federal avoid adverse effects and incompatible agencies to take a leadership role in development. If development requires preservation by surveying all lands siting in a flood plain, action shall be under their ownership or control and taken to modify or design the project in a nominating to the National Register of way that minimizes potential harm to or Historic Places all properties which within the flood plain. Procedures for appear to qualify. It also requires early public review shall be provided in agencies to avoid inadvertently cases not requiring and EIS. destroying such properties prior to

6 It is also recommended that planning wetlands and to avoid direct or reports/environmental impact statements indirect support of new include the following statement of construction in wetlands findings on actions located in a wherever there is a practicable floodplain or wetland: alternative. . ..”

1. Reasons why the proposed Executive agencies, in carrying out their action must be located in a flood land management responsibilities, are to plain or wetlands. take action which will minimize the destruction, loss, or degradation of 2. Facts considered in making wetlands, and take action to preserve and the determination to locate in a enhance the natural and beneficial values flood plain or wetlands, of wetlands. including alternative sites and actions considered. Each agency shall avoid undertaking or assisting in wetland construction 3. Statement about whether the projects, unless the head of the agency proposed action conforms to determines that there is no practicable applicable State or local flood alternative to such construction and that plain or wetlands protection the proposed action includes measures to standard. minimize harm.

4. Statement about whether the Also, agencies shall provide opportunity action affects the natural or for early public review of proposals for beneficial values of the flood construction in wetlands including those plain or wetlands. projects not requiring an EIS.

5. Description of steps taken to 10-15 Executive Order 12088 design or modify the proposed (Federal Compliance with action to minimize potential Pollution Control Standards, 1978) harm to or within the flood plain or wetlands. This Presidential directive delegates the head of each executive agency 6. A general listing of other responsible for ensuring that all involved agencies, groups, and necessary actions are taken for the organizations. prevention, control, and abatement of environmental pollution. 10-14 Executive Order 11990 (Protection of Wetlands, 1977) EO 12088 gives EPA authority to conduct reviews and inspections for the requires a construction agency to: purpose of monitoring Federal facility “. . . avoid to the extent possible compliance with pollution control the long- and short-term adverse standards. impacts associated with the destruction or modification of

7 Also, each executive agency shall submit 10-18 Executive Order 13352, a semi-annual plan to the Office of Facilitation of Cooperative Management and Budget for the control Conservation of environmental pollution. The plan shall indicate methods of improvement This Executive Order encourages in the design, construction, management, agencies to collaborate and work operation, and maintenance of Federal cooperatively with other Federal, State, facilities, and shall include annual cost local and tribal governments, interest estimates. groups, and individuals in promoting conservation. It 10-16 Executive Order 12114 encourages local participation in Federal (Environmental Effects Abroad of decisionmaking. Federal agencies are to Major Federal Actions, 1979) report annually to the Chairman of CEQ on actions taken to implement the order. EO 12114 addresses the issue of how the environmental review process should be 10-19 Farmland Protection Policy implemented for major Federal actions Act having significant environmental effects outside the borders of the United States. Farmland Protection Policy Act, Public Law 97-98 (Council on Environmental Procedures to implement this order shall Quality Memorandum, dated August 11, be developed by Federal agencies taking 1980, Analysis of Impacts on Prime and actions that will impact areas outside the Unique Agricultural Lands in United States border, its territories, and Implementing the National possessions. Environmental Policy Act)

10-17 Executive Order 13186 The U.S. Soil Conservation Service (Responsibilities of Federal (SCS) is responsible for administering Agencies to Protect Migratory the Farmland Protection Policy Act, Birds) Public Law 97-98. The SCS office in the project area should be contacted and EO 13186 was issued to assist Federal asked to identify whether the proposed agencies in complying with the action will affect any lands classified as Migratory Bird Treaty Act (MBTA) and prime and unique farmlands. to reduce agencies’ liability under the MBTA in regards to unintentional take 10-20 Federal Insecticide, of migratory birds. The EO lists Fungicide, and Rodenticide Act 15 actions that agencies may take to (FIFRA) (through P.L. 100-460, avoid or minimize take of migratory 100-464 to 100-526, and 100-532) birds. These measures should be considered and implemented, to the The Federal Insecticide, Fungicide, and extent practicable, to reduce liability Rodenticide Act, as amended, is the under the MBTA. basic law regulating in the

8 United States. The EPA is responsible enhancement purposes, and operate, for the regulatory aspects of this Act. maintain, and replace facilities used for The Act regulates the marketing of these purposes. There are also specific economic poisons and devices, as well cost sharing requirements prescribed by as the requirements for it use. the Act.

The FIFRA requires all pesticides used 10-22 Fish and Wildlife be classified for restricted or general use, Coordination Act of 1958 as well as requiring only certified (Public Law 85-624) applicators, or applicators under the direct supervision of a certified The objective of this Act is to provide applicator to apply restricted use that wildlife conservation receive equal pesticides. Each State provides an consideration and be coordinated with individual certification program. This other features of water resource program may be conducted by the development programs. State’s department of agriculture or, in some cases, EPA may administer the Sections 1 and 2 of the Fish and Wildlife program. Coordination Act (FWCA) mandate that fish and wildlife receive equal EPA responsibilities include regulating consideration with water resources the amount of residue of a development programs throughout which can remain in or on raw farm planning, development, operation, and products. The FIFRA prohibits using a maintenance. Whenever Reclamation pesticide in a manner inconsistent with proposes to impound, divert, channelize, its labeling. EPA may assess penalties or otherwise alter or modify any stream, for violations of the FIFRA. river, or other body of water for any purpose, Reclamation must first consult 10-21 Federal Water Project and coordinate its actions and projects Recreation Act of 1965 (P.L. 89-72) with the FWS and the affected State fish and game agency(ies) wherein the The policy of this Act states that Federal impoundment, diversion, or other control agencies in planning navigation, flood facility is to be constructed. This control, reclamation, hydroelectric, or consultation and coordination will multi-purpose water resource projects address ways to conserve wildlife must consider the potential outdoor resources by preventing loss of and recreational opportunities and potential damage to such resources, as well as to fish and wildlife enhancement that the further develop and improve these project might afford. If both purposes resources. can be served by the project, it shall be constructed, operated, and maintained The FWS is authorized to survey, accordingly. investigate, prepare reports, and recommend methods to determine the Also, project construction agencies shall possible damage to wildlife resources encourage non-Federal public bodies to and to determine means and measures administer project land and water areas that should be adopted to prevent the for recreation and fish and wildlife loss of, or damage to, such wildlife

9 resources, as well as to concurrently provisions were included in the develop and improve such resources. legislation which present opportunities The FWCA report shall be made a part to conserve and restore wetlands, of any Reclamation report submitted to prairies, and other habitats. Congress. Reclamation shall give full consideration to the report and The “sodbuster” and “swampbuster” recommendations and to any report of provisions will help to conserve the the State agency. The project plan shall natural values of wetlands, will help to include such justifiable fish and wildlife reduce soil erosion, and will help to means and measures as Reclamation reduce commodity surpluses. The determines necessary to obtain wetland conservation provisions will maximum overall project benefits. reduce the loss of wetlands by making producers who convert them and The usual FWS procedure is to provide produce an agricultural commodity on Reclamation with periodic planning aid the converted wetland ineligible for memorandums or planning aid letters certain U.S. Department of Agriculture throughout the planning process, and to programs’ benefits. The soil erosion provide a FWCA report at the provisions will reduce erosion and the conclusion of the planning process. Any loss of topsoil from agricultural lands by FWS planning aid memorandums should making producers who farm on highly be made a part of the project record, and erodible lands, as determined by SCS, any FWCA report received should be ineligible for most agricultural subsidies, attached to the NEPA document (EA or unless they farm such lands under a EIS). “Conservation Plan” that SCS has approved. Any recommendations of the FWS received should be summarized in the The legislation also provides for the NEPA document and responses made to establishment of conservation reserve, such recommendations. This summary conservation set aside, and conservation is usually made a part of the easement programs on existing Consultation and Coordination section. farmlands. If Reclamation decides not to implement a recommendation, the reasons the 10-24 Intergovernmental recommendation is not implemented Cooperation Act of 1968 must be given. (P.L. 90-577)

10-23 Food Security Act (Farm It is the purpose of this Act to encourage Bill) of 1985 better cooperation and coordination of activities among levels of government in The major intent of this Act is to reverse order to improve the operation of our the declining economic environment on Federal system. the American farm. As part of the legislation, Congress recognized a need The Act states that the President shall to more effectively manage the physical prescribe regulations governing the environment upon which American formulation, evaluation, and review of farmers depend. Several conservation government programs and projects

10 having significant impact on community 10-26 National Historic development. These regulations shall Preservation Act of 1966 promote sound and orderly development (P.L. 89-665), as amended of urban and rural areas by considering (Public Law 95-515) such things as an appropriate choice of use for land development (i.e., housing, Cultural (Historical, Archeological, commercial, industrial), conservation of Architectural, and Paleontological) natural resources, balanced Resources transportation systems, and adequate outdoor recreation and open space areas. National Historic Preservation Act of 1966, as amended (P.L. 89-665; 80 Stat. This Act also gives authority to Federal 915; 16 U.S.C. 470) establishes, as departments and agencies to provide Federal policy, the protection of historic specialized or technical services to sites and values in cooperation with States or local governments when a other nations, States, and local written request and payment for services governments. The Act creates the has been made. National Register of Historic Places and extends protection to historic places of Title II of the Act aims to improve State and local, as well as national, administration of grants-in-aid to the significance. It establishes the Advisory States. Council on Historic Preservation, State Historic Preservation Officers, Tribal 10-25 Migratory Bird Treaty Act Preservation Officers, and a preservation (16 U.S.C. 703-711) grants-in-aid program.

Under the Migratory Bird Treaty Act Section 106 directs Federal agencies to (MBTA), it is unlawful “by any means take into account effects of Federal or manner to pursue, hunt, take, capture, actions (“undertakings”) on properties in or kill” any migratory bird except as or eligible for the National Register. permitted by regulations issued by the Section 106 is implemented by Fish and Wildlife Service (Service). regulations of the Advisory Council on “Take” is not defined in the MBTA, but Historic Preservation, 36 CFR Part 800. the Service’s regulations define it as http://www.achp.gov/regs/html. Among “pursue, hunt, shoot, wound, kill, trap, other things, the regulations outline the capture, or collect any migratory bird or process for coordinating compliance any part, including nest or egg.” The with section 106 and the requirements of Service has developed a system of NEPA. The DOI criteria and procedures permits for activities involving for evaluating a property’s eligibility for intentional take of migratory birds but the National Register are at 36 CFR Part has no regulations for unintentional take. 60. Federal agencies are liable under the MBTA for unintentional take, even Section 110(a) sets inventory, when carrying out lawful activities. In nomination, protection, and preservation carrying out actions, Federal agencies responsibilities for federally owned should implement measures to avoid or cultural properties. Section 110(c) minimize take of migratory birds. requires each Federal agency to

11 designate a Preservation Officer to Class II Survey. The goal of the class II coordinate activities under the Act. survey is to evaluate the resources based on a sample that can serve as an The NEPA process requires that an indicator of resources present in the evaluation be conducted to determine entire area to be affected. This type of whether a proposed action will affect survey would normally be an on-the­ districts, sites, structures, or objects ground examination of a statistically listed in, or eligible for listing in, the valid sample of the total survey area and National Register of Historic Places may include remote sensing and/or (National Register). It is then geomorphological investigations or other determined whether the effect is adverse. appropriate techniques. Class II surveys are designed to aid in determining the Reclamation uses three levels of surveys necessity for a class III survey and may to locate and identify cultural resources. be combined with a class I survey or Consultation with the appropriate SHPO bypassed in favor of a class III survey. is necessary at appropriate times during and after such surveys. Class III Survey. A class III survey consists of an intensive on-the-ground Class I Survey. A class I survey is examination of all the areas to be primarily a literature/archival search. It affected by Reclamation action or on consists of consulting the National lands under Reclamation’s Register and supplemental National administration. It is designed to locate Register listings to determine whether and make a preliminary professional any National Register eligible-listed evaluation of all identified cultural properties exist in the area of a resources. All cultural resources Reclamation action. It also includes identified as historically significant will contacting the SHPO, State be nominated to the National Register or Archeologist, State Historian, State a determination of eligibility will be Historical Society, and/or other sought. A class III survey may require appropriate individuals, agencies, or test excavations or other specialized institutions to determine what cultural studies for the purpose of evaluating the resources may be present in an area and significance of cultural resources. what kind of additional information may be needed for an adequate inventory of The EA or EIS shall document the cultural resources. Regional records results of all cultural resources surveys shall also be examined for potentially conducted. In addition to identifying the eligible properties for listing on the effects of the proposed action to National Register on lands under identified National Register listed- Reclamation’s administration. It may be eligible properties, the EA or EIS will necessary to visit potentially significant describe mitigation plans to the extent areas or sites identified by the they have been resolved with the SHPO literature/archival research. If a class I and Advisory Council on Historic survey indicates the area has not been Places. adequately inventoried, a field examination is necessary. Reclamation Instruction 376.11, “Identification and Administration of

12 Cultural Resources,” contains additional notify the Secretary of the Interior when information on the process outlined here. such activities might destroy important Complete or full compliance with the archeological, historic, or scientific data. NEPA process given here does not The Secretary is authorized to conduct constitute compliance with all cultural appropriate investigations to protect resources legislation and regulations. those data. The act also authorizes See RI 376.11 for details. agencies to spend up to 1 percent of their construction funds on the protection of 10-27 Native American Graves historic and archeological resources. Protection and Repatriation Act of This is the first act to recognize that 1990, as amended (P.L. 101-601; archeological sites are important for 104 Stat. 3048; 25 U.S.C. 3001 et their data content, and to provide a seq.) source of funding for collecting archeological data. This Act establishes rights of Indian tribes and Native Hawaiian 10-29 Rivers and Harbors Act of organizations to claim ownership of 1899 (33 U.S.C. 401-413; Sec 407, certain “cultural items,” including referred to as the ) human remains, funerary objects, sacred objects, and objects of cultural Permits for structures or work in or patrimony, held or controlled by Federal affecting navigable waters of the United agencies and museums that receive States — 33 CFR 322 Federal funds. It requires agencies and museums to identify holdings of such Section 10 of the Rivers and Harbors remains and objects and to work with Act of 1899 prohibits the unauthorized appropriate Native Americans toward obstruction or alteration of any their repatriation. Permits for the navigable waters of the United States. excavation and/or removal of “cultural The construction of any structure in or items” protected by the Act require over any waters of the United States, Native American consultation, as do excavation or deposit of material in such discoveries of “cultural items” made waters, and various types of work during Federal land use activities. The performed in such water, including fill Secretary of the Interior’s implementing and stream channelization, are examples regulations are at 43 CFR Part 10. of activities requiring a U.S. Army Corps of Engineers permit (33 CFR 322). 10-28 Reservoir Salvage Act of 1960 (P.L. 86-523) 10-30 Resource Conservation and Recovery Act of 1976 (RCRA) Federally constructed reservoirs (P.L. 94-580) represent another major source of destruction of archeological resources Identification and Listing of Hazardous that cannot be resolved without a Waste – 40 CFR 261 specific source of funding. The act Standards Applicable to Generators of requires Federal agencies building or Hazardous Waste – 40 CFR 262 permitting the building of reservoirs to

13 Standards for Treatment, Storage, and Under authority of subtitle C, EPA Disposal Facilities (T/S/D’s) – 40 CFR establishes standards for generators, 264 transporters, and treatment, storage, and Interim Status Standards for T/S/D’s – disposal facilities (T/S/D’s). 40 CFR 265 Interim Status Standards for Owners and Generators are required to prepare Operators of a New Hazardous Waste manifests for tracking the hazardous Land Disposal Facility – 40 CFR 267 waste when it is being transported to a Land Disposal Restrictions – 40 CFR T/S/D facility. Generators must use 268 T/S/D facilities that have acquired an Requirements for Authorization of a EPA identification number and, State Hazardous Waste Program – therefore, are also regulated under 40 CFR 271 RCRA (40 CFR 272). Standards Applicable to Transporters of Hazardous Waste – 40 CFR 272 To own and operate a T/S/D facility, permit is required (40 CFR 264). The objectives of RCRA are to promote Interim status allows facilities existing at the protection of health and the the time the regulations went into effect environment and to conserve valuable (November 19, 1980) to remain in material and energy resources. The first operation until a permanent RCRA serious Federal attempt to address the permit has been issued. Interim status problems of solid waste and hazardous standards (40 CFR 265) are comparable waste management began with the to permanent standards. To date, very passage of RCRA. few final operating permits have been issued, either by EPA or authorized Subtitle C of RCRA establishes a States. hazardous waste program. The program is designed to regulate all areas of In the 1984 amendments, a ban on the hazardous waste management from disposal in landfills of noncontainerized generation to disposal. States can hazardous waste and waste containing assume authority for implementation of free liquids was imposed and became a hazardous waste program (40 CFR effective on May 8, 1985. Also, in 1984, 271), and all but a few have not acquired the Congress directed EPA to determine this authority. State programs must be at whether to ban or restrict, in whole or in least equivalent to the Federal program, part, the land disposal of all RCRA and many are more stringent. hazardous that are not pretreated using the best available technologies. If EPA is responsible for identifying what EPA misses the deadlines established in wastes are hazardous by either listing RCRA section 3004 for any phase, the those wastes that are hazardous or by ban for all waste in that phase will identifying hazardous characteristics for automatically go into effect. waste (40 CFR 261). It is the responsibility of the persons generating Interim status standards for owners and solid waste to determine if the waste operators of a new hazardous waste land they are generating is hazardous. disposal facility and land disposal

14 restrictions are standards in 40 CFR 267 systems. Two years after publication of and 268, respectively. this list, EPA is to publish proposed maximum contaminant goals and 10-31 Safe Act of promulgate national primary drinking 1974 (P.L. 93-523) as amended by water regulations for at least 25 of these the contaminants. Amendments of 1986 The Act also provides measures to National Primary Drinking Water protect underground drinking water Regulations – 40 CFR 141 sources through State underground National Interim Primary Drinking injection control programs. State Water Regulations Implementation – programs protect drinking water from 40 CFR 142 subsurface placement of fluids from well National Secondary Drinking Water operations. Regulations – 40 CFR 143 In 1962, the U.S. Public Health Service The Safe Drinking Water Act provides set standards for water used in interstate for the safety of drinking water supplies commerce. (EPA was established in throughout the United States by 1970.) establishing national standards of which the States are responsible for enforcing. 10-32 Superfund Amendments and Reauthorization Acts of 1986 The Act provides for the establishment (SARA) (P.L. 99-499) of primary regulations for the protection of the public health and secondary This Act extensively amends CERCLA regulations relating to the taste, odor, or Superfund. SARA’s major goals and appearance of drinking water. include a stepped-up pace of cleanup, Primary drinking water regulations, by increased public participation, and more definition, include either a maximum stringent and better defined cleanup contaminant level (MCL) or, when a standards, emphasizing remedial actions MCL is not economically or that permanently and significantly technologically feasible, a prescribed reduce hazardous situations. Remedial treatment technique which would actions are generally more extensive prevent adverse health effects to than removal actions, usually requiring a humans. An MCL is the permissible National Priorities Listing, a detailed site level of a contaminant in water that is study, and an analysis of the cost delivered to any user of a public water effectiveness of various cleanup options, system. Primary and secondary drinking known as Remedial Investigation and water regulations are stated in 40 CFR Feasibility Study. Removal actions are 141 and 143, respectively. for more immediate needs not requiring any of the above-mentioned restrictions. The Act’s 1986 amendments require EPA to publish, by January 1, 1988, and The Act requires EPA to revise the at 3-year intervals thereafter, a list of Hazard Ranking System to more contaminants which are known or accurately reflect the degree of risk to anticipated to occur in public water human health and the environment.

15 SARA adds (1) damage to natural the effect of chemical substances and resources and (2) contamination of mixtures on those who do the ambient air as criteria to be considered manufacturing and processing. Also, to in evaluating potential hazards. provide authority for the regulation of chemical substances presenting SARA also requires that EPA or the unreasonable risk of injury to health State provide public notice and and/or the environment. opportunity to comment on any proposed plan for remedial action prior If EPA finds that a chemical substance, to government approval of the plan. through its processing, use, or disposal, In addition to requiring a cost-effective will pose an unreasonable risk to health cleanup remedy for a Superfund site, as and/or the environment, it may apply required by CERCLA, SARA requires certain requirements prohibiting a that preference be given to remedies that particular use, or use in a particular permanently reduce the , volume, concentration, limit the amount that can or mobility of the hazardous substances. be manufactured, and/or require the substances to be marked with warnings To reduce health and environmental and instructions for use, distribution, and risks to communities near chemical disposal. manufacturing facilities, the Act establishes a comprehensive reporting To ensure compliance with the and emergency planning program. Each requirements of this Act, EPA may local emergency committee is to inspect any facility where chemicals are complete, by October 17, 1988, an manufactured, processed, and stored, or emergency plan. The plan shall include any conveyance being used to transport such things as identifying facilities chemical substances. covered by the emergency response requirements (i.e., those facilities using This Act required EPA to prescribe any of the 402 extremely hazardous methods for the disposal of PCB’s and substances listed by EPA), emergency unless by EPA rule, no person may response methods for facility operators manufacture, process, distribute in and local medical personnel, and commerce, or use PCB’s (40 CFR 761). evacuation plans. The Act also provided for the 10-33 Toxic Substances Control establishment of Federal regulations Act of 1986 (TSCA) (P.L. 99-519) which require inspection for - containing material and implementation Polychlorinated biphenyls (PCB’s) – of appropriate response actions (methods manufacturing, processing, distribution that protect human health and the in commerce, and use prohibitions – 40 environment from asbestos-containing CFR 761 material).

The stated policy of TSCA is to place the responsibility of developing data on

16 10-34 Uniform Relocation services as may be necessary or Assistance and Real Property appropriate to: Acquisition Policies Act of 1970 (Public Law 91-646) and Title IV – 1. Determine and make timely Uniform Relocation Act recommendations on the needs amendments of 1987 (42 U.S.C. and preferences, if any, of 4601) displaced persons for relocation assistance. The purpose of this Act is to provide for uniform and equitable treatment of 2. Provide current and persons displaced from their homes, continuing information on the businesses, or farms by Federal and availability, sales prices, and federally assisted programs and to rental charges of comparable establish uniform and equitable land replacement dwellings for acquisition policies for Federal and displaced homeowners and federally listed programs. tenants and suitable locations for businesses and farm operations. The Act states that whenever the acquisition of real property for a 3. Ensure that a person shall not program or project by a Federal agency be required to move from a will result in the displacement of any dwelling unless the person has person, the agency small make a had a reasonable opportunity to payment to the displaced person for: relocate to a comparable replacement dwelling. 1. Reasonable moving expenses accrued while searching for a 4. Assist a person displaced replacement business, farm from a business or farm operation, or other personal operation in obtaining and property. becoming established in a suitable replacement location. 2. Direct losses of tangible personal property as a result of 5. Supply information moving or discontinuing a concerning other Federal and business or farm operation. State programs which may be of assistance to displaced persons, 3. Reasonable expenses accrued technical assistance to such while searching for a person in applying for assistance replacement business or farm. under such programs.

The Act also provides for relocation 6. Provide other advisory planning, assistance coordination, and services to displaced persons in advisory services. These services shall order to minimize hardships to include such measures, facilities, or such persons in adjusting to relocation.

17 10-35 Wild and Scenic Rivers wild and scenic rivers or study rivers Act of 1986 (P.L. 90-542) administered by the Secretary of Agriculture. Construction of Water Resources Projects Affecting Wild and Scenic Selected rivers and streams have been Rivers administered by the Secretary of placed into the National Rivers Agriculture – 36 CFR 297 Inventory by acts of Congress. Other rivers and streams have been proposed to The Wild and Scenic Rivers Act ensures be included into the system. Rivers and that: streams included or proposed for inclusion into the system must be “. . . Certain selected rivers . . . considered during project planning and shall be preserved in a free project impacts identified in the EA or flowing condition, and that they EIS. If there are no impacts to wild and and their immediate scenic rivers, this fact should be noted in environments shall be protected the Wild and Scenic Rivers Act for the benefit and enjoyment of summary. present and future generations.” There is no legal requirement to consider It is policy of this Act to select certain State-listed wild and scenic rivers and rivers of the Nation possessing streams or unique areas during project remarkable scenic, recreational, planning or in the EA or EIS. However, geologic, fish and wildlife, historic, it is recommended that any impacts to cultural, or other similar values; preserve State-listed, or proposed-for-listing, them in a free-flowing condition; and rivers and streams and unique areas be protect their local environments. considered and addressed at levels This Act establishes three classes of comparable to consideration given to river areas (1) wild river areas, rivers and streams protected by the Wild characterized as being free of and Scenic Rivers Act. impoundments, generally inaccessible except by trail, watersheds or shoreline 10-36 Others essentially primitive, and unpolluted waters; (2) scenic river areas, Anadromous Fish Conservation Act characterized as being free of Commercial Fisheries Research and impoundments, accessible in places Development Act of 1974 by road, and have shorelines or Department of Transportation Act watersheds still largely undeveloped; Federal Aid in Fish Restoration Act (3) recreational river areas are Federal Environmental Pesticide Control characterized as being readily accessible Act of 1972 by road or railroad, may have some Federal Power Act development along their shoreline, and Federal Control Act may have undergone some impoundment Federal Water Pollution Control Act or diversion in the past. Amendments of 1972 Federal Power Act 36 CFR 297 applies to the construction Federal Water Pollution Control Act of water resources projects affecting

18 Federal Water Pollution Control Act Pollution and Abatement Act of Amendments of 1972 1970 (Public Law 91-604) Fish and Wildlife Act of 1956 Pesticides Research Act Land and Water Conservation Fund Act Quiet Communities Act of 1978 (Public Marine Protection, Research and Law 95-609) Sanctuaries Act of 1972 Water Bank Act Marine Mammal Protection Act Water Resources Research Act of 1964 Migratory Bird Conservation Act Watershed Protection and Flood National Trails System Act Prevention Act National Wildlife Refuge System Wild Horses and Burros Protection Act Administration Act of 1966 of 1964 Act of 172 (Public Law Wilderness Act of 1964 92-574)

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