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APPCOR10535
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APPCOR10535
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Last modified
8/24/2016 6:26:55 PM
Creation date
11/19/2007 2:11:26 PM
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Template:
DRMS Permit Index
Permit No
C1981034
IBM Index Class Name
Application Correspondence
Doc Date
3/13/1981
From
OSM
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MLR
Media Type
D
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_r <br /> <br />-z- <br />"Area of the undertaking's potential environmental impact" is defined in 36 <br />CFR 800.2(0) as "... Ch a[ geographical area within which direct and indirect <br />effects generated by the undertaking could reasonably be expected to occur..." <br />This definition was purposely written to conform with the definition adopted <br />by the Council on Environmental Quality (44 Fed. Reg. 6069, 1979), which is <br />found in the NEPA regulations in 40 CFR 1508.8. Federal agencies are furCher <br />directed. to integrate [he Section 106 compliance process into any document <br />prepared for NEPA compliance (36 CFR 800.9). NEPA document's are prepared in <br />relation to impact, regardless of land ownership. The Second Circuit in Watch <br />v. Harris, 603 F.2d 310 (2d Cir. 1979), held that "the mandate of Nf1PA ... is <br />quit- a Tiroad" and that the courts "are no more willing to give a 'crabbed <br />interpretation' to Section 106 of the Act than the courts have been in respect <br />to NEPA." <br />The Department of the Interior has reviewed the Interior Board of Land <br />Appeals' decision in Western Slope Gas Co., 40 IBLA 280, reconsideration <br />denied, 43 IBLA 259 (1979 M-36917, The Extent to Which the National <br />Historic Preservation Act Requires Cultural Resources to be Identifted and <br />Considered in the Grant of a Federal Right-of-Way, December 6, 1979. This <br />case involved a pipeline right-of-way across both Federal and non-Federal <br />land. The Secretary concurred with the solicitor's opinion that Section 106 <br />of NHPA applied to both Federal and non-Federal land, and that the Department <br />is required to comply with Section 106 and the implementing regulations in any <br />case where a Federal action will cause an impact on non-Federal land. This <br />decision has become Departmental Policy. <br />Furthermore, [he courts have upheld this broad definition of "undertaking" and <br />"impact" in cases where no Federal land was involved, but a Federal action was <br />taken. In Hall Count Historical Soc. v. Georgia Dept. of TransporCation, 447 <br />F, Supp. 741 (N.D. GA. 1978 , and Thompson v. Fugate, 347 F. Supp. 120 E,D. <br />Va. 1972), the courts held that NHPA applied to entire highway construction <br />projects, even though some portions of the projects were not being federally <br />subsidized. The reasoning of these cases was that all parts of interconnected <br />projects must be considered together, and not to do so would, in effect, <br />result in the defeat of Congressional intent and of the policies behind the <br />NHPA. In another case, Ely v. Velde, 497 F.2d 252 (4th Cir. 1974) the Fourth <br />Circuit held that a state could not avoid NHPA requirements by requesting a <br />diversion of previously allocated Federal funds from one federal-aid project <br />to another. <br />2) National <br />regulations <br />al Policy_ Act (NEPA) (P .L. 91-190) and implementing <br />arts <br />Section 101(b) of NEPA declares that one objective of national environmental <br />policy is to "preserve important historic, cultural, and natural aspects of <br />our national heritage and maintain, wherever possible, an environment which <br />supports diversity and variety of individual choice." <br />
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