Compliance With Other Federal Authorities
EPA administers permitting programs authorized under well-known federal statutes including the Clean Water Act and Clean Air Act. However, there are additional laws that may also apply to federal permitting — referred to as “crosscutting federal authorities” — because their requirements for compliance may apply across many federal permitting and regulatory programs. EPA must ensure that its permitting programs comply with these crosscutting federal authorities; compliance is documented as part of the decision-making processes.
EPA coordinates, as needed, with other federal agencies during the permitting process to ensure compliance with crosscutting federal authorities. During this coordination, other federal agencies provide technical review and consider impacts and necessary mitigation associated with a proposed project.
The following summaries are intended to provide only general information about the listed crosscutting federal authorities. This is not an all-inclusive list of federal authorities that may apply to projects under EPA permits.
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Statutes
The statutes most broadly applicable for permitting purposes and may require interagency coordination and consultation include NEPA, NHPA, ESA and MSA.
While these four are the most prominent statutes to consider, agencies should also ensure they meet the requirements of other relevant cross-cutting federal authorities, including but not limited to MMPA, CZMA, FPPA, FWCA and WSRA.
National Environmental Policy Act
43 U.S. Code § 1638 (1970)
NEPA requires federal agencies to assess the environmental effects of their proposed actions, and coordinate with other government agencies prior to making decisions. NEPA is triggered by a range of federal actions including funding and permit decision-making. An environmental impact analysis is required by NEPA for:
- Making decisions on permit applications.
- Adopting federal land management actions.
- Constructing highways and other publicly-owned facilities.
Using the NEPA process, agencies evaluate the environmental and related social and economic effects of their proposed actions. Agencies are also required to provide opportunities for public review and comment on these evaluations. EPA is charged under Section 309 of CAA to review the environmental impact statements of other federal agencies and to comment on the adequacy and the acceptability of the environmental impacts of the proposed action. EPA serves as the repository for EISs prepared by federal agencies and provides notice of EIS availability in the Federal Register. EPA also has responsibility to prepare its own NEPA documents for compliance; however, courts have consistently recognized that certain EPA procedures or environmental reviews under enabling legislation are functionally equivalent to the NEPA process and thus exempt from the procedural requirements of NEPA. The purpose of the functional equivalence exemption is avoidance of repetitious analysis in a decision-making process that functions in an equivalent way to the NEPA process.
- Learn more about the National Environmental Policy Act.
- Learn more about EPA’s Compliance with NEPA.
Pub. L. No. 89-665, as amended, 80 Stat. 917 (1966) 16 U.S.C. §470 et. seq.
NHPA establishes a national preservation program and a system of procedural protections for proposed federal undertakings, which encourage both the identification and protection of historic resources, including archeological resources.
Most notably, Section 106 of the Act and its implementing regulations (36 CFR Part 800) were promulgated to ensure that federal agencies conduct a review of the potential effects of federally licensed, assisted, regulated, or funded activities on historic properties listed or eligible for listing on the National Register. Section 106 review requires the federal agency, before issuing a license (permit), to identify areas of potential effect, adopt measures—when feasible—to mitigate potential adverse effects of the licensed activity and properties listed or eligible for listing in the National Register of Historic Places—the official federal inventory of districts, sites, buildings, structures and objects significant on a national, state or local level in American history, architecture, archeology, engineering and culture. The Act’s requirements are to be implemented in cooperation with state and tribal historic preservation officers and upon notice to, and when appropriate, in consultation with the Advisory Council on Historic Preservation.
Endangered Species Act
16 U.S.C. §1531 et seq. (1973)
ESA establishes protections for fish, wildlife, and plants that are listed as threatened or endangered, provides for adding species to and removing them from the list of threatened and endangered species and for preparing and implementing plans for their recovery, and provides for interagency cooperation to avoid take of listed species and for issuing permits for otherwise prohibited activities.
Section 7 of ESA requires that federal agencies consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to ensure that projects authorized, funded, or carried out by the agency are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species.
- Learn more about the Endangered Species Act.
- Learn more about USFWS ESA Section 7 Consultation.
- Learn more about NMFS ESA Section 7 Consultation.
Magnuson-Stevens Fishery Conservation and Management Act
Pub. L. 94-265 (1976), as amended 16 U.S.C. §1801 et. seq.
MSA is the primary law that governs marine fisheries management in U.S. waters. MSA fosters the long-term biological and economic sustainability of marine fisheries.
A consultation with NMFS is required whenever a federal agency, including the military, works in an area that will affect Essential Fish Habitat. NMFS provides maps and/or other information on the locations of EFHs available as well as provides information on ways to promote conservation of EFH to facilitate an EFH assessment.
- Learn more about the Magnuson-Stevens Fishery Conservation and Management Act.
- Learn more about Essential Fish Habitat Consultation.
Marine Mammal Protection Act
16 U.S.C. 1361-1407
MMPA established a national policy to prevent marine mammal species and population stocks from declining beyond the point where they cease to be significant functioning elements of the ecosystems of which they are a part. Three federal entities share responsibility for implementing the MMPA:
- NOAA - NMFS is responsible for the protection of whales, dolphins, porpoises, seals, and sea lions.
- USFWS is responsible for the protection of walrus, manatees, sea otters, and polar bears.
- Marine Mammal Commission provides independent, science-based oversight of domestic and international policies and actions of federal agencies addressing human impacts on marine mammals and their ecosystems.
Coastal Zone Management Act
Pub. L. No. 92-583 (1972), as amended 16 U.S.C. § 1451 et. seq.
CZMA, administered by states subject to NOAA oversight, provides for the management of the nation’s coastal resources, including the Great Lakes. The goal is to “preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone.” CZMA outlines three national programs: the National Coastal Zone Management Program, the National Estuarine Research Reserve System, and the Coastal and Estuarine Land Conservation Program. CZMA includes a “consistency” provision, which gives states a strong voice in activities requiring a federal license or permit, as well as federal agency activities, that may affect a state’s coastal uses or resources.
The responsible state agency reviews a federal agency’s determination whether a federal activity is consistent to the maximum extent practicable with the state’s NOAA-approved coastal zone management plan.
- Learn more about the Coastal Zone Management Act.
- Learn more about the Federal Consistency Determination.
Farmland Protection Policy Act
Pub. L. No. 97-98 (1981) 7 U.S.C. §4201 et. seq.
FPPA is intended to minimize the unnecessary and irreversible conversion of farmland to nonagricultural uses. It calls upon federal agencies to “identify and take into account the adverse effects of federal programs on the preservation of farmland; consider alternative actions, as appropriate, that could lessen such adverse effects”; and assure that, to the extent possible, federal programs are administered to be “compatible with state, local government units, and private programs and policies to protect farmland” (7 U.S.C. § 4202(b)). For FPPA, farmland includes prime farmland (prime soil characteristics), unique farmland (high value specialty crops), and land of statewide or local importance to produce food, feed, fiber, forage, or oil seed crops. Farmland subject to FPPA requirements does not have to be currently used for cropland. It can be forest land, pastureland, cropland, or other land, but not water or urban built-up land.
Fish and Wildlife Coordination Act
16 U.S.C. 661-666(e)
FWCA directs the USFWS to investigate and report on proposed federal actions that affect any stream or other body of water and to provide recommendations to minimize impacts on fish and wildlife resources.
Wild and Scenic Rivers Act
Pub. L. No. 90-542, 82 Stat. 913 (1968) 16 U.S.C. §1271 et. seq.
WSRA preserves certain rivers with outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations.
The National Park Service consultation determines if an action will adversely affect a designated or study Wild and Scenic River.
Executive Orders
Agencies should also ensure they meet the requirements of potentially applicable Executive Orders, such as the Flood Plain Management Executive Order No. 11988 (1979) and the Protection of Wetlands Executive Order No. 11990 (1977), as amended by Executive Order No. 12608 (1997).
The following summaries are intended to provide only general information about the listed crosscutting federal authorities. This is not an all-inclusive list of federal authorities that may apply to projects under EPA permits.
Flood Plain Management
Executive Order No. 11988 (1977), as amended by Executive Order No. 12148 (1979)
Executive Order No. 11988 regulates the actions of federal agencies that affect flood plains. This order requires all agencies undertaking, financing, or assisting proposed activities to determine whether they will occur in or affect a flood plain and to evaluate potential measures to avoid adversely affecting the plain.
Protection of Wetlands
Executive Order No. 11990 (1977), as amended by Executive Order No. 12608 (1997)
Executive Order 11990 broadly directs all agencies of the federal government to carefully consider the effects of discharges to wetlands that are their responsibility, and to minimize the destruction, loss, or degradation of wetlands in any manner when there are feasible alternatives to the action. Section 2(a) of the order requires that “…each agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use.” The Executive Order also requires public notice of any plans to support new construction in wetlands.