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National Environmental Policy Act

Commission of Fine Arts
Rules and Procedures
For
Application of the Requirements of the National Environmental Policy Act
To Review and Approval of
Commemorative Works Site and Design Proposals

 

I.  Objective

To establish the procedures the Commission of Fine Arts (Commission) shall follow to ensure compliance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq. in its review and approval of Site and Design Proposals for commemorative works pursuant to the requirements of the Commemorative Works Act (CWA), as amended, 40 U.S.C. 8905(a).

 

II.  Policies

It is the policy of the Commission to undertake its decision-making process for commemorative works Site and Design Proposals in a manner consistent with all laws, Executive Orders, regulations and policies pertaining to environmental protection and to ensure to the maximum extent possible Commission actions on commemorative works Site and Design Proposals protect and, where possible, improve the quality of the human environment including the built and sociocultural environment of the District and its environs.

 

III.  Definitions

For purposes of this document, the terms set forth below shall mean as follows:
“Act" or “NEPA” means the National Environmental Policy Act, as amended, codified at 42 U.S.C. 4321, et seq.
“Applicant” means either the Department of Interior or the General Services Administration that seeks review and approval of a commemorative work Site or Design Proposal submitted to the Commission on behalf of a sponsor.
“CWA” means the Commemorative Works Act, as amended, codified at 40 U.S.C. 8901, et. seq.
"Council" or “CEQ” means the Council on Environmental Quality established by title II of NEPA.
"Commission" means the Commission of Fine Arts created by An Act establishing a Commission of Fine Arts (PL 181 61st Congress, H.R. 19962 40 U.S.C. 104, 36 Stat. 371) and
An Act to amend the Act relating the Commission of Fine Arts (PL 461 86th Congress, S. 2778 40 U.S.C.A. 106, Stat. 128).
“Cooperating agency" means a federal agency that has jurisdiction by law with respect to the analysis of the environmental impacts associated with a proposal, and in the context of a project involving multiple federal agencies, participates in the NEPA process with the other federal agencies in a non-lead role.
“Design Proposal” means the proposed design of a commemorative work.
"Environmental Impact Statement" or “EIS” means a detailed written statement as required by Section 102(2)(C) of NEPA.
"Environmental Assessment" (EA) means a document that briefly discusses the environmental consequences of a proposed action and alternatives.  An EA is used to determine whether to prepare an EIS or a FONSI; aid an agency’s compliance with the NEPA when no EIS is necessary; and facilitate preparation of an EIS when one is necessary.
"Finding of No Significant Impact" (FONSI) means a document that briefly presents the reasons why an action, not otherwise excluded from a NEPA analysis, will not significantly affect the environment. It shall include the EA or a summary of the EA.
“Record of Decision” or “ROD” means a document that presents the agency’s decision: indentifies the alternatives considered and the resulting alternative; states whether all practicable means to avoid or minimized environmental harm have been adopted, and if not, why not; and summarizes and adopts a monitoring and enforcement program, where applicable, for any mitigation measures.
"Site Proposal" means to the proposed geographical location for a commemorative work.
“Sponsor” means a public agency, or an individual, group or organization that is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such code, and which is authorized by Congress to establish a commemorative work in the District of Columbia and its environs.
“Tiering” means a process of preparing sequential environmental documents focusing on specific actions.  Tiering allows incorporation by reference of relevant information in an earlier environmental document into a subsequent environmental document.  Tiering helps the lead agency focus on issues which are ripe for decision while excluding issues from consideration that are not yet ripe.   

 

IV. Procedures

A.  Commemorative Work Site Proposal

a.  An Applicant  requesting Commission approval of a Site Proposal shall prepare and submit, at a minimum, an Environmental Assessment (EA) that considers the potential environmental effects of selecting the proposed site from a reasonable number of alternatives.

b.  An Applicant shall submit an EA to the Commission at the time it submits its application for review and approval of a Site Proposal.  The EA must be complete and signed by the Applicant at the time of its submission.

c.  An Applicant shall invite the Commission to participate as a Cooperating Agency during the preparation of its EA.  Failure to include the Commission as a Cooperating Agency may delay the Commission’s review and approval of a Site Proposal.

d.  An Applicant shall consult with Commission staff as early as possible in the process to select a site for a commemorative work to obtain guidance on studies or environmental information required for the Commission to satisfy its NEPA obligation.

e.  The Applicant is advised to work with a Sponsor early on in the site selection process.  In preparing its EA, an Applicant should consider use of a Sponsor’s site selection evaluation report if the Sponsor prepared such a report as part of its memorial planning process.

f.  The Applicant’s EA shall provide sufficient evidence and analysis to permit a Commission Finding of No Significant Impact (FONSI) or a determination that an EIS is required.

g.  An Applicant shall defer detailed consideration of the effects of its Design Proposal to a subsequent, separate EA submitted during the design review phase if detailed consideration of alternative design proposals is impractical at the site selection phase.  The Applicant may use tiering for its Site and Design Proposal EAs to eliminate repetitive discussions and to focus on the issues that are ripe for decision at the site and design approval stages.

h.  The Commission shall adopt and take responsibility for the scope and contents of the Applicant’s EA if it determines the EA is adequate by CEQ standards.  The Commission determination of adequacy and adoption may be delegated to the Secretary of the Commission (Secretary) in accordance with Section E of these procedures.
 
i.  If the Commission determines the Site Proposal will not have a significant effect on the human environment, the Commission shall prepare a FONSI.  A  FONSI determination may be delegated to the Secretary in accordance with Section E of these procedures.  If the EA does not support a FONSI, the Commission shall direct the Applicant to undertake preparation of an EIS in accordance with Section C of these procedures or deny the Applicant’s Site Proposal.

j.  The Commission shall make a FONSI available for public review before the Commission takes action on a Site Proposal. The Commission may delegate this task in accordance with Section D of these procedures.

 

B.  Commemorative Work Design Proposal

a.  An Applicant  requesting Commission approval of a Design Proposal shall prepare and submit, at a minimum, an EA that considers the potential environmental effects of selecting the proposed design from a reasonable number of alternatives unless such proposal qualifies for exclusion as set forth in subsection (b) below.

b.  At the Commission’s sole discretion, the Commission may exclude from NEPA review minor modifications to existing commemorative work Design Proposals previously approved by the Commission.  Minor modifications shall mean, without limitation: (i) repair, replacement in-kind, or routine installation of site elements, i.e., site or commemorative work identification signs, plaques, sidewalks, patios, fences, retaining walls, gates and the like; (ii) repair and replacement in kind of utility lines, i.e., water, sewer, gas, fiber optics and the like; and (iii) routine grounds and facility maintenance to include replacement of existing landscaping elements with the same type of landscape material in the same location as that previously planted. Applicants are advised to consult with Commission staff to determine the applicability of an exclusion.  The Commission shall issue a determination that a modification to an existing commemorative work Design Proposal qualifies for exclusion from NEPA review.  The Commission’s determination may be delegated to the Secretary in accordance with Section E of these procedures.

c.  The Commission may review a Design Proposal in two stages -- concept and final.  A concept review shall be undertaken at the request of the Applicant and shall provide guidance in preparation of the Applicant’s design for a commemorative work.  An Applicant shall submit a draft EA to the Commission at the time it submits its application for concept review. The EA must be complete and signed by the Applicant at the time of its submission for final review of a commemorative work Design Proposal.

d.  An Applicant shall invite the Commission to participate as a Cooperating Agency during the preparation of its EA.  Failure to include the Commission as a Cooperating Agency may delay the Commission’s review and approval of a Design Proposal.

e.  An Applicant shall consult with Commission staff as early as possible in the design process for a commemorative work to obtain guidance on studies or environmental information required for the Commission to satisfy its NEPA obligation.

f.  The Applicant’s EA shall provide sufficient evidence and analysis to permit a Commission FONSI or a determination that an EIS is required.

g.  The Commission shall adopt and take responsibility for the scope and contents of the Applicant’s EA if the EA is deemed adequate by CEQ standards.  The Commission determination of adequacy and adoption may be delegated to the Secretary in accordance with Section E of these procedures.

h.  If the Commission determines the design concept will not have a significant effect on the human environment, the Commission shall prepare a FONSI.  A FONSI determination may be delegated to the Secretary in accordance with Section E of these procedures.  If the EA does not support a FONSI, the Commission shall direct the Applicant to undertake preparation of an EIS in accordance with Section C of these procedures or deny the Applicant’s Design Proposal.

i.  The Commission shall make the FONSI available for public review before the Commission takes action on a Design Proposal.  The Commission may delegate this task to the Secretary in accordance with Section E of these procedures.

 

C.  Preparation of an EIS

a.  If an EA for either a commemorative work Site or Design Proposal does not support a FONSI, the Applicant shall be required to prepare an EIS.

b.  The Applicant shall submit a Final EIS to the Commission at the time it submits its application for a Site Proposal.  The EIS must be complete and signed by the Applicant at the time of its submission.  An Applicant shall submit a Draft EIS to the Commission at the time it submits its application for concept review of a Design Proposal.  The Final EIS for a Design Proposal must be submitted by the Applicant at the time of it submits its application for final review and approval.

c.  The Applicant shall coordinate with the Commission early in the EIS preparation process and shall invite the Commission to participate in the process as a Cooperating Agency.

d.  The Applicant shall be responsible for the EIS process and shall undertake the process in compliance with CEQ and its own agency regulations.  The process shall include:  (i) Publication of a Notice of Intent to prepare an EIS in the Federal Register;  (ii) public scoping and appropriate public involvement in the scoping process;  (iii) preparation of a Draft EIS;  (iv) public review and comment on the Draft EIS with an opportunity for appropriate public involvement in the review process;  (v) preparation of a Final EIS;  and (vi) Environmental Protection Agency (EPA) publication of a Notice of Availability of the Final EIS in the Federal Register.

e.  The Commission shall adopt and take responsibility for the scope and contents of the Applicant’s EIS after an independent review.  The Commission determination of adequacy and adoption may be delegated to the Secretary in accordance with Section E of these procedures. 

f.  The Commission shall take action on the Site or Design Proposal 30 days after EPA publication of the Final EIS in the Federal Register.  If the Commission decides to approve the Site or Design Proposal, the Commission shall prepare a Record of Decision (ROD).  Preparation of a ROD may be delegated to the Secretary in accordance with Section E of these procedures.  If necessary, the Commission may revise a ROD at any time provided the revised ROD is adequately supported by the EIS.  A revised ROD shall be subject to public review.

g.  The Commission shall make the ROD available for public review before the Commission takes action on a Site or Design Proposal.  The Commission may delegate this task to the Secretary in accordance with Section E of these procedures.
 
h.  The Applicant shall prepare a supplemental EIS in response to substantial changes to the original Site or Design Proposal or significant new circumstances or information relevant to the environmental concerns raised in the original EIS for a Site or Design Proposal.  The Applicant shall prepare, circulate and file a supplemental EIS in the same fashion (exclusive of scoping) as the original Draft and Final EIS.  The Commission shall prepare and make available for public review a ROD in the same manner as the initial ROD issued at the time of its initial action or any revised ROD it may have issued.

 

D.  Cooperation with other agencies

The Commission shall make staff available to work cooperatively with the staff of other concerned agencies, such as National Capital Planning Commission (NCPC), throughout the NEPA process for a commemorative work Site and Design Proposal to avoid duplication and delay in implementing the NEPA process for Commemorative Work Site and Design Proposals.  Such cooperation shall include, without limitation:  preparation of site specific guidelines as authorized by the CWA at 40 U.S.C. 8905(a)(6);  comparable FONSI determinations;  and comparable RODs.

 

E.  Delegations to the Secretary

In conjunction with carrying out these procedures, the Commission delegates to the Secretary, or such individual acting in that capacity, the following authority:  (i) determining whether to adopt the Applicant’s EA;  (ii) determining whether to make a FONSI;  (iii) preparing and signing a FONSI;  (iv) making the FONSI available for public review before the Commission takes action on a Site or Design Proposal;  (v) determining whether a modification to an existing commemorative work Design Proposal qualifies for an exception from NEPA review;  (v) determining whether to adopt the Applicant’s EIS;  (vi) preparing a ROD;  and (vii) making a ROD available for public review before the Commission takes action on a Site or Design Proposal.