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technical or procedural nature or construction of new permanent roads or (l) Contribute to the introduction whose environmental effects are too other new permanent infrastructure and continued existence or spread of broad speculative or conjectural to (3) Shall be completed within three noxious weeds or non-native invasive lend themselves to meaningful analysis years following a wildland fire species known to occur in the area or and will later be subject to the NEPA actions that may promote the
sect 46215 Categorical Exclusionsprocess either collectively or case-by- introduction growth or expansion ofExtraordinary circumstances case the range of such species (FederalExtraordinary circumstances (see(j) Activities which are educational Noxious Weed Control Act and EOparagraph 46205(c)) exist for individualinformational advisory or consultative 13112)actions within categorical exclusionsto other agencies public and private that may meet any of the criteria listed sect 46220 How to designate lead agenciesentities visitors individuals or the in paragraphs (a) through (l) of this (a) In most cases the Responsiblegeneral public section Applicability of extraordinary Official should designate one Federal(k) Hazardous fuels reduction circumstances to categorical exclusions agency as the lead with the remainingactivities using prescribed fire not to is determined by the Responsible Federal State tribal governments andexceed 4500 acres and mechanical Official local agencies assuming the role ofmethods for crushing piling thinning (a) Have significant impacts on public cooperating agency In this manner thepruning cutting chipping mulching health or safety other Federal State and local agenciesand mowing not to exceed 1000 acres (b) Have significant impacts on such can work to ensure that the NEPASuch activities natural resources and unique geographic document will meet their needs for(1) Shall be limited to areasmdash characteristics as historic or cultural
adoption and application to their related(i) In wildland-urban interface and resources park recreation or refuge decision(s)(ii) Condition Classes 2 or 3 in Fire lands wilderness areas wild or scenic (b) In some cases a non-FederalRegime Groups I II or III outside the rivers national natural landmarks sole agency (including a tribal government)wildland-urban interface or principal drinking water aquifers must comply with State or local(2) Shall be identified through a prime farmlands wetlands (EO 11990) requirements that are comparable to thecollaborative framework as described in floodplains (EO 11988) national NEPA requirements In these cases thelsquolsquoA Collaborative Approach for monuments migratory birds and other Responsible Official may designate theReducing Wildland Fire Risks to ecologically significant or critical areas non-Federal agency as a joint leadCommunities and the Environment 10- (c) Have highly controversial agency (See 40 CFR 15015 and 15062Year Comprehensive Strategy environmental effects or involve for a description of the selection of leadImplementation Planrsquorsquo unresolved conflicts concerning agencies the settlement of lead agency(3) Shall be conducted consistent with alternative uses of available resources disputes and the use of joint leadbureau and Departmental procedures [NEPA section 102(2)(E)] agencies)and applicable land and resource (d) Have highly uncertain and
management plans potentially significant environmental (c) In some cases the Responsible Official may establish a joint leadeffects or involve unique or unknown(4) Shall not be conducted in relationship among several Federalenvironmental riskswilderness areas or impair the
(e) Establish a precedent for future agencies If there is a joint lead thensuitability of wilderness study areas for action or represent a decision in one Federal agency must be identifiedpreservation as wilderness and principle about future actions with as the agency responsible for filing the(5) Shall not include the use of potentially significant environmental environmental impact statement withherbicides or pesticides or the effects EPAconstruction of new permanent roads or
(f) Have a direct relationship to otherother new permanent infrastructure and sect 46225 How to select cooperatingactions with individually insignificantmay include the sale of vegetative agenciesbut cumulatively significantmaterial if the primary purpose of the (a) An lsquolsquoeligible governmental entityrsquorsquoenvironmental effectsactivity is hazardous fuels reduction is(g) Have significant impacts on(Refer to the ESM Series for additional (1) Any Federal agency that isproperties listed or eligible for listingrequired guidance) qualified to participate in theon the National Register of Historic
(l) Post-fire rehabilitation activities development of an environmentalPlaces as determined by the bureaunot to exceed 4200 acres (such as tree impact statement as provided for in 40(h) Have significant impacts onplanting fence replacement habitat species listed or proposed to be listed CFR 15016 and 15085 by virtue of its restoration heritage site restoration jurisdiction by law as defined in 40on the List of Endangered or Threatenedrepair of roads and trails and repair of Species or have significant impacts on CFR 150815 damage to minor facilities such as (2) Any Federal agency that isdesignated Critical Habitat for thesecampgrounds) to repair or improve qualified to participate in thespecieslands unlikely to recover to a (i) Violate a Federal law or a State development of an environmental management approved condition from local or tribal law or requirement impact statement by virtue of its special wildland fire damage or to repair or imposed for the protection of the expertise as defined in 40 CFR 150826 replace minor facilities damaged by fire environment or Such activities must comply with the (j) Have a disproportionately high and (3) Any non-Federal agency (State following (Refer to the ESM Series for adverse effect on low income or tribal or local) with qualifications additional required guidance) minority populations (EO 12898) similar to those in paragraphs (a)(1) and
(1) Shall be conducted consistent with (k) Limit access to and ceremonial use (a)(2) of this section bureau and Departmental procedures of Indian sacred sites on Federal lands (b) Except as described in paragraph and applicable land and resource by Indian religious practitioners or (c) of this section the Responsible management plans significantly adversely affect the Official for the lead bureau must invite
(2) Shall not include the use of physical integrity of such sacred sites eligible governmental entities to herbicides or pesticides or the (EO 13007) participate as cooperating agencies
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when the bureau is developing an stages of preparation of an Subpart DmdashEnvironmental environmental impact statement environmental impact statement Assessments
(c) The Responsible Official for the Scoping is required for an sect 46300 Purpose of an environmentallead bureau must consider any request environmental impact statement assessment and when it must be preparedby an eligible governmental entity to scoping may be helpful during
The purpose of an environmentalparticipate in a particular preparation of an environmental environmental impact statement as a assessment but is not required (see assessment is to allow the Responsible cooperating agency If the Responsible paragraph 46305(a) Public involvement Official to determine whether to prepare Official for the lead bureau denies a in the environmental assessment an environmental impact statement or a
finding of no significant impactrequest or determines it is process) For an environmental impact (a) A bureau must ensure that aninappropriate to extend an invitation he statement bureaus must use scoping to
environmental assessment is preparedor she must state the reasons in the engage State local and tribal for all proposed Federal actions exceptenvironmental impact statement Denial governments and the public in the early thoseof a request or not extending an identification of concerns potential
(1) That are covered by a categoricalinvitation for cooperating agency status impacts relevant effects of past actions exclusionis not subject to any internal and possible alternative actions
(2) That are covered sufficiently by anadministrative appeals process nor is it Scoping is an opportunity to introduce earlier environmental document asa final agency action subject to review and explain the interdisciplinary determined and documented by theunder the Administrative Procedure approach and solicit information as to Responsible Official orAct 5 USC 701 et seq additional disciplines that should be
(3) For which the bureau has already(d) Bureaus should work with included Scoping also provides an decided to prepare an environmentalcooperating agencies to develop and opportunity to bring agencies and impact statementadopt a memorandum of understanding applicants together to lay the
(b) A bureau may prepare anthat includes their respective roles groundwork for setting time limits environmental assessment for anyassignment of issues schedules and expediting reviews where possible proposed action at any time tostaff commitments so that the NEPA integrating other environmental
(1) Assist in planning and decision-process remains on track and within the reviews and identifying any major makingtime schedule Memoranda of obstacles that could delay the process
(2) Further the purposes of NEPAunderstanding must be used in the case The Responsible Official shall when no environmental impactof non-Federal agencies and must determine whether in some cases the statement is necessary orinclude a commitment to maintain the invitation requirement in 40 CFR
(3) Facilitate environmental impactconfidentiality of documents and 15017(a)(1) may be satisfied by statement preparationdeliberations during the period prior to including such an invitation in the
the public release by the bureau of any notice of intent (NOI) sect 46305 Public involvement in the NEPA document including drafts (b) In scoping meetings newsletters environmental assessment process
(e) The procedures of this section may or by other communication methods (a) The bureau must to the extentbe used for an environmental appropriate to scoping the lead agency practicable provide for publicassessment must make it clear that the lead agency notification and public involvement
is ultimately responsible for when an environmental assessment issect 46230 Role of cooperating agencies in determining the scope of anthe NEPA process being prepared However the methods
environmental impact statement and for providing public notification andIn accordance with 40 CFR 15016 that suggestions obtained during opportunities for public involvementthroughout the development of an scoping are only options for the bureau are at the discretion of the Responsibleenvironmental document the lead to consider Officialbureau will collaborate to the fullest (1) The bureau must considerextent possible with all cooperating sect 46240 Establishing time limits for the
comments that are timely receivedagencies concerning those issues NEPA process whether specifically solicited or notrelating to their jurisdiction and special (a) For each proposed action on a
(2) Although scoping is not requiredexpertise Cooperating agencies may by case-by-case basis bureaus shall agreement with the lead bureau help to (1) Set time limits from the start to the the bureau may apply a scoping process
do the following finish of the NEPA analysis and to an environmental assessment (b) Publication of a lsquolsquodraftrsquorsquo(a) Identify issues to be addressed documentation consistent with the
(b) Arrange for the collection andor requirements of 40 CFR 15018 and environmental assessment is not assembly of necessary resource other legal obligations including required Bureaus may seek comments
on an environmental assessment if theyenvironmental social economic and statutory and regulatory timeframes (2) Consult with cooperating agencies determine it to be appropriate such asinstitutional data
in setting time limits and when the level of public interest or the(c) Analyze data (d) Develop alternatives (3) Encourage cooperating agencies to uncertainty of effects warrants and may (e) Evaluate alternatives and estimate meet established time frames revise environmental assessments based
the effects of implementing each (b) Time limits should reflect the on comments received without need of availability of Department and bureau initiating another comment periodalternative and
(f) Carry out any other task necessary personnel and funds Efficiency of the (c) The bureau must notify the public NEPA process is dependent on the of the availability of an environmentalfor the development of the
environmental analysis and management capabilities of the lead assessment and any associated finding documentation bureau which must assemble an of no significant impact once they have
interdisciplinary team andor qualified been completed Comments on a finding sect 46235 NEPA scoping process staff appropriate to the type of project to of no significant impact do not need to
(a) Scoping is a process that continues be analyzed to ensure timely completion be solicited except as required by 40 throughout the planning and early of NEPA documents CFR 15014(e)(2)
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(d) Bureaus may allow cooperating or decision-making document The sect 46415 Environmental impact statement agencies (as defined in sect 46225) to portion of the document that analyzes content alternatives circulation and filing
requirementsparticipate in developing environmental the environmental impacts of the assessments proposal and alternatives must be The Responsible Official may use any
clearly and separately identified and not environmental impact statement formatsect 46310 Contents of an environmental spread throughout or interwoven into and design as long as the statement isassessment other sections of the document in accordance with 40 CFR 150210
(a) At a minimum an environmental (a) Contents The environmental assessment must include brief sect 46320 Adopting environmental impact statement shall disclosediscussions of assessments prepared by another agency (1) A statement of the purpose and
(1) The proposal entity or person need for the action(2) The need for the proposal (a) A Responsible Official may adopt (2) A description of the proposed(3) The environmental impacts of the an environmental assessment prepared action
proposed action by another agency entity or person (3) The environmental impact of the(4) The environmental impacts of the including an applicant if the proposed action
alternatives considered and Responsible Official (4) A brief description of the affected(5) A list of agencies and persons (1) Independently reviews the environment
consulted environmental assessment and (5) Any adverse environmental effects(b) When the Responsible Official (2) Finds that the environmental which cannot be avoided should thedetermines that there are no unresolved assessment complies with this subpart proposal be implementedconflicts about the proposed action with and relevant provisions of the CEQ (6) Alternatives to the proposedrespect to alternative uses of available Regulations and with other program actionresources the environmental requirements (7) The relationship between localassessment need only consider the (b) When appropriate the Responsible short-term uses of the humanproposed action and does not need to Official may augment the environmental environment and the maintenance andconsider additional alternatives assessment to be consistent with the enhancement of long-term productivityincluding the no action alternative (See bureaursquos proposed action (8) Any irreversible or irretrievablesection 102(2)(E) of NEPA) (c) In adopting or augmenting the commitments of resources which would
(c) In addition an environmental environmental assessment the be involved in the proposed actionassessment may describe a broader Responsible Official will cite the should it be implemented andrange of alternatives to facilitate original environmental assessment (9) The process used to coordinateplanning and decision-making (d) The Responsible Official must with other Federal agencies State tribal
(d) A proposed action or alternative(s) ensure that its bureaursquos public and local governments and persons ormay include adaptive management involvement requirements have been organizations who may be interested orstrategies allowing for adjustment of the met before it adopts another agencyrsquos affected and the results thereofaction during implementation If the environmental assessment (b) Alternatives The environmentaladjustments to an action are clearly
sect 46325 Conclusion of the environmental impact statement shall document thearticulated and pre-specified in the assessment process examination of the range of alternativesdescription of the alternative and fully Upon review of the environmental (paragraph 46420(c)) The range ofanalyzed then the action may be assessment by the Responsible Official alternatives includes those reasonableadjusted during implementation the environmental assessment process alternatives (paragraph 46420(b)) thatwithout the need for further analysis concludes with one of the following meet the purpose and need of theAdaptive management includes a (1) A notice of intent to prepare an proposed action and address one ormonitoring component approved environmental impact statement more significant issues (40 CFRadaptive actions that may be taken and (2) A finding of no significant impact 15017(a)(2ndash3)) related to the proposedenvironmental effects analysis for the or action Since an alternative may beadaptive actions approved (3) A result that no further action is developed to address more than one
(e) The level of detail and depth of taken on the proposal significant issue no specific number ofimpact analysis should normally be alternatives is required or prescribed Inlimited to the minimum needed to Subpart EmdashEnvironmental Impact addition to the requirements in 40 CFRdetermine whether there would be Statements 150214 the Responsible Official has ansignificant environmental effects
sect 46400 Timing of environmental impact option to use the following procedures(f) Bureaus may choose to provide statement development to develop and analyze alternativesadditional detail and depth of analysis (1) The analysis of the effects of theThe bureau must prepare anas appropriate in those environmental no-action alternative may beenvironmental impact statement forassessments prepared under paragraph documented by contrasting the currenteach proposed major Federal action46300(b)
(g) An environmental assessment significantly affecting the quality of the condition and expected future condition should the proposed action not bemust contain objective analyses that human environment before making a
support conclusions concerning decision on whether to proceed with the undertaken with the impacts of the proposed action and any reasonableenvironmental impacts proposed action alternatives
sect 46315 How to format an environmental sect 46405 Remaining within page limits (2) The Responsible Official may assessment To the extent possible bureaus collaborate with those persons or
(a) An environmental assessment may should use techniques such as organization that may be interested or be prepared in any format useful to incorporation of referenced documents affected to modify a proposed action facilitate planning decision-making into NEPA analysis (46135) and tiering and alternative(s) under consideration and appropriate public participation (46140) in an effort to remain within prior to issuing a draft environmental
(b) An environmental assessment may the normal page limits stated in 40 CFR impact statement In such cases the be accompanied by any other planning 15027 Responsible Official may consider these
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61322 Federal Register Vol 73 No 200 Wednesday October 15 2008 Rules and Regulations
modifications as alternatives information However this description requirements must clearly identify and considered Before engaging in any must not be confused with the bureaursquos discuss all the associated analyses collaborative processes the Responsible purpose and need for action It is the studies or surveys relied upon by the Official must consider the Federal bureaursquos purpose and need for action bureau as a part of that review and Advisory Committee Act (FACA) that will determine the range of consultation The environmental impact implications of such processes alternatives and provide a basis for the statement must include these associated
(3) A proposed action or alternative(s) selection of an alternative in a decision analyses studies or surveys either in may include adaptive management (b) Reasonable alternatives In the text or in an appendix or indicate strategies allowing for adjustment of the addition to the requirements of 40 CFR where such analysis studies or surveys action during implementation If the 150214 this term includes alternatives may be readily accessed by the public adjustments to an action are clearly that are technically and economically (b) The draft environmental impactarticulated and pre-specified in the practical or feasible and meet the statement must list all Federal permits description of the alternative and fully purpose and need of the proposed licenses or approvals that must be analyzed then the action may be action obtained to implement the proposaladjusted during implementation (c) Range of alternatives This term The environmental analyses for these without the need for further analysis includes all reasonable alternatives or related permits licenses and approvals Adaptive management includes a when there are potentially a very large should be integrated and performed monitoring component approved number of alternatives then a reasonable concurrently The bureau however adaptive actions that may be taken and number of examples covering the full need not unreasonably delay its NEPA environmental effects analysis for the spectrum of reasonable alternatives analysis in order to integrate another adaptive actions approved each of which must be rigorously agencyrsquos analyses The bureau may
(c) Circulating and filing draft and explored and objectively evaluated as complete the NEPA analysis before allfinal environmental impact statements well as those other alternatives that are approvals by other agencies are in place(1) The draft and final environmental eliminated from detailed study with a impact statements shall be filed with the brief discussion of the reasons for sect 46435 Inviting comments Environmental Protection Agencyrsquos eliminating them 40 CFR 150214 The (a) A bureau must seek comment from Office of Federal Activities in Responsible Official must not consider the public as part of the Notice of Intent Washington DC (40 CFR 15069) alternatives beyond the range of to prepare an environmental impact
(2) Requirements at 40 CFR 15069 alternatives discussed in the relevant statement and notice of availability forlsquolsquoFiling requirementsrsquorsquo 40 CFR 150610 environmental documents but may a draft environmental impact statement lsquolsquoTiming of agency actionrsquorsquo 40 CFR select elements from several alternatives (b) In addition to paragraph (a) of this15029 lsquolsquoDraft final and supplemental discussed Moreover the Responsible section a bureau must requeststatementsrsquorsquo and 40 CFR 150219 Official must in fact consider all the comments from lsquolsquoCirculation of the environmental alternatives discussed in an (1) Federal agenciesimpact statementrsquorsquo shall only apply to environmental impact statement 40 (2) State agencies through proceduresdraft final and supplemental CFR 15051 (e) established by the Governor of suchenvironmental impact statements that (d) Preferred alternative This term state under EO 12372are filed with EPA refers to the alternative which the (3) Local governments and agencies
bureau believes would best accomplish to the extent that the proposed actionsect 46420 Terms used in an environmental the purpose and need of the proposedimpact statement affects their jurisdictions andaction while fulfilling its statutoryThe following terms are commonly (4) The applicant if any and personsmission and responsibilities givingused to describe concepts or activities in or organizations who may be interestedconsideration to economican environmental impact statement or affected environmental technical and other(a) Statement of purpose and need In (c) The bureau must requestfactors It may or may not be the sameaccordance with 40 CFR 150213 the comments from the tribal governmentsas the bureaursquos proposed action thestatement of purpose and need briefly unless the tribal governments havenon-Federal entityrsquos proposal or theindicates the underlying purpose and designated an alternate review processenvironmentally preferable alternativeneed to which the bureau is responding when the proposed action may affect the
(1) In some instances it may be environment of eithersect 46425 Identification of the preferredappropriate for the bureau to describe alternative in an environmental impact (1) Indian trust or restricted land or its lsquolsquopurposersquorsquo and its lsquolsquoneedrsquorsquo as distinct statement (2) Other Indian trust resources trust aspects The lsquolsquoneedrsquorsquo for the action may assets or tribal health and safety(a) Unless another law prohibits thebe described as the underlying problem expression of a preference the draft (d) A bureau does not need to delayor opportunity to which the agency is environmental impact statement should preparation and issuance of a finalresponding with the action The identify the bureaursquos preferred environmental impact statement whenlsquolsquopurposersquorsquo may refer to the goal or alternative or alternatives if one or any Federal State and local agencies orobjective that the bureau is trying to more exists tribal governments from whichachieve and should be stated to the (b) Unless another law prohibits the comments must be obtained or extent possible in terms of desired expression of a preference the final requested do not comment within the outcomes environmental impact statement must prescribed time period
(2) When a bureau is asked to approve identify the bureaursquos preferredan application or permit the bureau sect 46440 Eliminating duplication with Statealternative and local proceduresshould consider the needs and goals of the parties involved in the application sect 46430 Environmental review and A bureau must incorporate in its or permit as well as the public interest consultation requirements directives provisions allowing a State The needs and goals of the parties (a) Any environmental impact agency to jointly prepare an involved in the application or permit statement that also addresses other environmental impact statement to the may be described as background environmental review and consultation extent provided in 40 CFR 15062
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Federal Register Vol 73 No 200 Wednesday October 15 2008 Rules and Regulations 61323
sect 46445 Preparing a legislative formal transmittal of a legislative alternative(s) in the record of decision environmental impact statement proposal to the Congress It is not necessary that the
environmentally preferableWhen required under 40 CFR 15068 sect 46450 Identifying the environmentally alternative(s) be selected in the record ofthe Department must ensure that a preferable alternative(s) decisionlegislative environmental impact In accordance with the requirements
statement is included as a part of the of 40 CFR 15052 a bureau must [FR Doc E8ndash23474 Filed 10ndash14ndash08 845 am]
identify the environmentally preferable BILLING CODE 4310ndashRGndashP
APPENDIX 15
Department of the Interior Departmental Manual
Effective Date 52704 Series Environmental Quality Programs Part 516 National Environmental Policy Act of 1969 Chapter 10 Managing the NEPA Process--Bureau of Indian Affairs
Originating Office Bureau of Indian Affairs
516 DM 10
101 Purpose This Chapter provides supplementary requirements for implementing provisions of 516 DM 1 through 6 within the Department=s Bureau of Indian Affairs (BIA) This Chapter is referenced in 516 DM 65
102 NEPA Responsibility
A Deputy Commissioner of Indian Affairs is responsible for NEPA compliance of BIA activities and programs
B Director Office of Trust Responsibilities (OTR) is responsible for oversight of the BIA program for achieving compliance with NEPA program direction and leadership for BIA environmental policy coordination and procedures
C Environmental Services Staff reports to the Director (OTR) This office is the Bureau-wide focal point for overall NEPA policy and guidance and is responsible for advising and assisting Area Offices Agency Superintendents and other field support personnel in their environmental activities The office also provides training and acts as the Central Offices liaison with Indian tribal governments on NEPA and other environmental compliance matters Information about BIA NEPA documents or the NEPA process can be obtained by contacting the Environmental Services Staff
D Other Central Office Directors and Division Chiefs are responsible for ensuring that the programs and activities within their jurisdiction comply with NEPA
E Area Directors and Project Officers are responsible for assuring NEPA compliance with all activities under their jurisdiction and providing advice and assistance to Agency Superintendents and consulting with the Indian tribes on environmental matters related to NEPA Area Directors and Project Officers are also responsible for assigning sufficient trained staff to ensure NEPA compliance is carried out An Environmental Coordinator is located at each Area Office
F Agency Superintendents and Field Unit Supervisors are responsible for NEPA compliance and enforcement at the Agency or field unit level
103 Guidance to Applicants and Tribal Governments
A Relationship with Applicants and Tribal Governments
(1) Guidance to Applicants
(a) An applicant is an entity which proposes to undertake any activity which will at some point require BIA action These may include tribal governments private entities state and local governments or other Federal agencies BIA compliance with NEPA is Congressionally mandated Compliance is initiated when a BIA action is necessary in order to implement a proposal
(b) Applicants should contact the BIA official at the appropriate level for assistance This will be the Agency Superintendent Area Director or the Director Office of Trust Responsibilities
(c) If the applicants proposed action will affect or involve more than one tribal government one government agency one BIA Agency or where the action may be of State-wide or regional significance the applicant should contact the respective Area Director(s) The Area Director(s) using sole discretion may assign the lead NEPA compliance responsibilities to one Area Office or as appropriate to one Agency Superintendent From that point the Applicant will deal with the designated lead office
(d) Since much of the applicants planning may take place outside the BIA system it is the applicants responsibility to prepare a milestone chart for BIA use at the earliest possible stage in order to coordinate the efforts of both parties Early communication with the responsible BIA office will expedite determination of the appropriate type of NEPA documentation required Other matters such as the scope depth and sources of data for an environmental document will also be expedited and will help lead to a more efficient and more timely NEPA compliance process
(2) Guidance to Tribal Governments
(a) Tribal governments may be applicants andor be affected by a proposed action of BIA or another Federal agency Tribal governments affected by a proposed action shall be consulted during the preparation of environmental documents and at their option may cooperate in the review or preparation of such documents Notwithstanding the above the BIA retains sole responsibility and discretion in all NEPA compliance matters
(b) Any proposed tribal actions that do not require BIA or other Federal approval funding or actions are not subject to the NEPA process
B Prepared Program Guidance BIA has implemented regulations for environmental guidance for surface mining in 25 CFR Part 216 (Surface Exploration Mining and Reclamation of Lands) Environmental guidance for Forestry activities is found in 25 CFR 16327 and 53 BIAM Supplements 2 and 3
C Other Guidance Programs under 25 CFR for which BIA has not yet issued regulations or directives for environmental information for applicants are listed below These programs may or may not require environmental documents and could involve submission of applicant information to determine NEPA applicability Applicants for these types of programs should contact the appropriate BIA office for information and assistance
(1) Partial payment construction charges on Indian irrigation projects (25 CFR Part 134)
(2) Construction assessments Crow Indian irrigation project (25 CFR Part 135)
(3) Fort Hall Indian irrigation project Idaho (25 CFR Part 136)
(4) Reimbursement of construction costs San Carlos Indian irrigation project Arizona (25 CFR Part 137)
(5) Reimbursement of construction costs Ahtanum Unit Wapato Indian irrigation project Washington CFR Part 138)
(6) Reimbursement of construction costs Wapato-Satus Unit Wapato Indian Irrigation project Washington (25 CFR Part 139)
(7) Land acquisitions (25 CFR Part 151)
(8) Leasing and permitting (Lands) (25 CFR Part 162)
(9) Sale of lumber and other forest products produced by Indian enterprises from the forests on Indian reservation (25 CFR Part 164)
(10) Sale of forest products Red Lake Indian Reservation Minn (25 CFR Part 165)
(11) General grazing regulations (25 CFR Part 166)
(12) Navajo grazing regulations (25 CFR Part 167)
(13) Grazing regulations for the Hopi partitioned lands (25 CFR Part 168)
(14) Rights-of-way over Indian lands (25 CFR Part 169)
(15) Roads of the Bureau of Indian Affairs (25 CFR Part 170)
(16) Concessions permits and leases on lands withdrawn or acquired in connection with Indian irrigation projects (25 CFR Part 173)
(17) Indian Electric Power Utilities (25 CFR Part 175)
(18) Resale of lands within the badlands Air Force Gunnery Range (Pine Ridge Aerial Gunnery Range) (25 CFR Part 178)
(19) Leasing of tribal lands for mining (25 CFR Part 211)
(20) Leasing of allotted lands for mining (25 CFR Part 212)
(21) Leasing of restricted lands of members of Five Civilized Tribes Oklahoma for mining (25 CFR Part 213)
(22) Leasing of Osage Reservation lands Oklahoma for mining except oil and gas (25 CFR Part 214)
(23) Lead and zinc mining operations and leases Quapaw Agency (25 CFR Part 215)
(24) Leasing of Osage Reservation lands for oil and gas mining (25 CFR Part 226)
(25) Leasing of certain lands in Wind River Indian Reservation Wyoming for oil and gas mining (25 CFR Part 227)
(26) Indian fishing in Alaska (25 CFR Part 241)
(27) Commercial fishing on Red Lake Indian Reservation (25 CFR 242)
(28) Use of Columbia River in-lieu fishing sites (25 CFR Part 248)
(29) Off-reservation treaty fishing (25 CFR Part 249)
(30) Indian fishing - Hoopa Valley Indian Reservation (25 CFR Part 150)
(31) Housing Improvement Program (25 CFR Part 256)
(32) Contracts under Indian Self-Determination Act (25 CFR Part 271)
(33) Grants under Indian Self-Determination Act 25 CFR Part 272)
(34) School construction or services for tribally operated previously private schools
(25 CFR Part 274)
(35) Uniform administration requirements for grants (25 CFR 276)
(36) School construction contracts for public schools (25 CFR Part 277)
104 Major Actions Normally Requiring an EIS
A The following BIA actions normally require the preparation of an Environmental Impact Statement (EIS)
(1) Proposed mining contracts (for other than oil and gas) or the combination of a number of smaller contracts comprising a mining unit for
(a) New mines of 640 acres or more other than surface coal mines
(b) New surface coal mines of 1280 acres or more or having an annual full production level of 5 million tons or more
(2) Proposed water development projects which would for example inundate more than 1000 acres or store more than 30000 acre-feet or irrigate more than 5000 acres of undeveloped land
(3) Construction of a treatment storage or disposal facility for hazardous waste or toxic substances
(4) Construction of a solid waste facility for commercial purposes
B If for any of these actions it is proposed not to prepare an EIS an Environmental Assessment (EA) will be developed in accordance with 40 CFR 15014(a)(2)
105 Categorical Exclusions In addition to the actions listed in the Departments categorical exclusions in Appendix 1 of 516 DM 2 many of which the BIA also performs the following BIA actions are hereby designated as categorical exclusions unless the action qualifies as an exception under Appendix 2 of 516 DM 2 These activities are single independent actions not associated with a larger existing or proposed complex or facility If cases occur that involve larger complexes or facilities an EA or supplement should be accomplished
A Operation Maintenance and Replacement of Existing Facilities Examples are normal renovation of buildings road maintenance and limited rehabilitation of irrigation structures
B Transfer of Existing Federal Facilities to Other Entities Transfer of existing operation and maintenance activities of Federal facilities to tribal groups water user organizations or other entities where the anticipated operation and maintenance activities are
agreed to in a contract follow BIA policy and no change in operations or maintenance is anticipated C Human Resources Programs Examples are social services education services employment assistance tribal operations law enforcement and credit and financing activities not related to development D Administrative Actions and Other Activities Relating to Trust Resources Examples are Management of trust funds (collection and distribution) budget finance estate planning wills and appraisals E Self-Determination and Self-Governance (1) Self-Determination Act contracts and grants for BIA programs listed as categorical exclusions or for programs in which environmental impacts are adequately addressed in earlier NEPA analysis (2) Self-Governance compacts for BIA programs which are listed as categorical exclusions or for programs in which environmental impacts are adequately addressed in earlier NEPA analysis F Rights-of-Way (1) Rights-of-Way inside another right-of-way or amendments to rights-of-way where no deviations from or additions to the original right-of-way are involved and where there is an existing NEPA analysis covering the same or similar impacts in the right-of-way area (2) Service line agreements to an individual residence building or well from an existing facility where installation will involve no clearance of vegetation from the right-of-way other than for placement of poles signs (including highway signs) or buried powercable lines (3) Renewals assignments and conversions of existing rights-of-way where there would be essentially no change in use and continuation would not lead to environmental degradation G Minerals (1) Approval of permits for geologic mapping inventory reconnaissance and surface sample collecting (2) Approval of unitization agreements pooling or communitization agreements (3) Approval of mineral lease adjustments and transfers including assignments and subleases
(4) Approval of royalty determinations such as royalty rate adjustments of an existing lease or contract agreement H Forestry (1) Approval of free-use cutting without permit to Indian owners for on-reservation personal use of forest products not to exceed 2500 feet board measure when cutting will not adversely affect associated resources such as riparian zones areas of special significance etc (2) Approval and issuance of cutting permits for forest products not to exceed $5000 in value (3) Approval and issuance of paid timber cutting permits or contracts for products valued at less than $25000 when in compliance with policies and guidelines established by a current management plan addressed in earlier NEPA analysis (4) Approval of annual logging plans when in compliance with policies and guidelines established by a current management plan addressed in earlier NEPA analysis (5) Approval of Fire Management Planning Analysis detailing emergency fire suppression activities (6) Approval of emergency forest and range rehabilitation plans when limited to environmental stabilization on less than 10000 acres and not including approval of salvage sales of damaged timber (7) Approval of forest stand improvement projects of less than 2000 acres when in compliance with policies and guidelines established by a current management plan addressed in earlier NEPA analysis (8) Approval of timber management access skid trail and logging road construction when consistent with policies and guidelines established by a current management plan addressed in earlier NEPA analysis (9) Approval of prescribed burning plans of less than 2000 acres when in compliance with policies and guidelines established by a current management plan addressed in earlier NEPA analysis (10) Approval of forestation projects with native species and associated protection and site preparation activities on less than 2000 acres when consistent with policies and guidelines established by a current management plan addressed in earlier NEPA analysis I Land Conveyance and Other Transfers Approvals or grants of conveyances and other transfers of interests in land where no change in land use is planned
J Reservation Proclamations Lands established as or added to a reservation pursuant to 25 USC 467 where no change in land use is planned
K Waste Management
(1) Closure operations for solid waste facilities when done in compliance with other federal laws and regulations and where cover material is taken from locations which have been approved for use by earlier NEPA analysis
(2) Activities involving remediation of hazardous waste sites if done in compliance with applicable federal laws such as the Resource Conservation and Recovery Act (PL 94-580) Comprehensive Environmental Response Compensation and Liability Act (PL 96-516) or Toxic Substances Control Act (PL 94-469)
L Roads and Transportation
(1) Approval of utility installations along or across a transportation facility located in whole within the limits of the roadway right-of-way
(2) Construction of bicycle and pedestrian lanes and paths adjacent to existing highways and within the existing rights-of-way
(3) Activities included in a highway safety plan under 23 CFR 402
(4) Installation of fencing signs pavement markings small passenger shelters traffic signals and railroad warning devices where no substantial land acquisition or traffic disruption will occur
(5) Emergency repairs under 23 USC 125
(6) Acquisition of scenic easements
(7) Alterations to facilities to make them accessible for the elderly or handicapped
(8) Resurfacing a highway without adding to the existing width
(9) Rehabilitation reconstruction or replacement of an existing bridge structure on essentially the same alignment or location (eg widening adding shoulders or safety lanes walkways bikeways or guardrails)
(10) Approvals for changes in access control within existing right-of-ways
(11) Road construction within an existing right-of-way which has already been acquired for a HUD housing project and for which earlier NEPA analysis has already been
prepared
M Other
(1) Data gathering activities such as inventories soil and range surveys timber cruising geological geophysical archeological paleontological and cadastral surveys
(2) Establishment of non-disturbance environmental quality monitoring programs and field monitoring stations including testing services
(3) Actions where BIA has concurrence or co-approval with another Bureau and the action is categorically excluded for that Bureau
(4) Approval of an Application for Permit to Drill for a new water source or observation well
(5) Approval of conversion of an abandoned oil well to a water well if water facilities are established only near the well site
(6) Approval and issuance of permits under the Archaeological Resources Protection Act (16 USC 470aa-ll) when the permitted activity is being done as a part of an action for which a NEPA analysis has been or is being prepared
52704 3620 Replaces 31880 3511
APPENDIX 16
INDIAN AFFAIRS MANUAL Part 59 Environmental and Cultural Resources Management Chapter 3 National Environmental Policy Act Page 1
31 Purpose This chapter establishes policy requirements and responsibilities for Indian Affairs (IA) headquarters and field staff for compliance with the National Environmental Policy Act (NEPA) Complying with NEPA requires IA to complete appropriate environmental documents to demonstrate IA has considered the effects its actions may cause on the human environment
32 Scope The policy and standards apply to all IA Offices who have control and responsibility for actions affecting Indian trust lands or any adjacent lands These include all actions that IA offices directly initiate fund or approve The NEPA requires that IA consider the environmental effects and properly document this consideration prior to initiating the actions
33 Policy It is the policy of IA to
A Consider the environmental effects of its actions by conducting the appropriate environmental review
B Account for this review by preparing the appropriate environmental documents
C Take the appropriate steps to ensure negative environmental effects are prevented minimized or mitigated whenever possible
D Monitor for and assess the effectiveness of mitigation measures identified to mitigate adverse environmental impacts in EAs and EISs
E Periodically review the IA list of categorically excluded actions and determine their continuing applicability
F Categorically exclude purchase and consolidation of fractionated interests of Indian land under 516 DM 105(I) and apply a single nation-wide Categorical Exclusion Exception Review (CEER) A separate CEER Checklist of each purchase is not required but to document the nation-wide CEER the following statement will be included with each deed
ldquoIn compliance with the National Environmental Policy Act (NEPA) the Bureau of Indian Affairs (BIA) has determined that the purchase of fractionated interests under this deed is categorically excluded under 516 DM 105(I) BIA has evaluated the purchase to determine whether it meets any of the extraordinary circumstances in 43 CFR 46215 and has determined that any extraordinary circumstances would not be affected because the land use of the purchased interests would not change Any future change in land use that requires a major federal action would require further NEPA reviewrdquo
34 Authority The following statute regulations and Executive Order impose requirements on IA regarding compliance with NEPA
A Statutes (1) National Environmental Policy Act of 1969 (NEPA) 42 USC 4321 ndash et seq as
amended Release 10-33 Replaces 59 IAM 3 issued 102599
B Regulations (1) 40 CFR Parts 1500 - 1508 Regulations of the Council on Environmental Quality (CEQ) (2) 43 CFR Part 46 Implementation of the National Environmental Policy Act (NEPA) of 1969
C Executive Orders (1) Executive Order 11514 Protection and Enhancement of Environmental Quality Section 2 March 5 1970 as amended by Executive Order 11991 Relating to Protection and Enhancement of Environmental Quality May 24 1977 (2) Executive Order 11988 Floodplain Management May 24 1977 (3) Executive Order 11990 Protection of Wetlands May 24 1977 (4) Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations February 11 1994
D Guidance
(1) 516 DM 10 Managing the NEPA Process ndash Bureau of Indian Affairs (2) IA NEPA Guidebook (3) CEQ Forty Most Asked Questions Concerning CEQrsquos National Environmental (4) Policy Act Regulations (46 FR 18026) (5) CEQ Guidance Regarding NEPA Regulations (48 FR 34236) (6) CEQ Environmental Justice Guidance under the National Environmental Policy Act
December 1997 (7) CEQ Final Guidance for Federal Departments and Agencies on the Appropriate
Use of Mitigation and Monitoring and Clarifying the Use of Findings of No Significant Impact (76 FR 3843)
(8) CEQ Final Guidance for Federal Departments and Agencies on Establishing Applying and Revising Categorical Exclusions under the National Environmental Policy Act (75 FR 75628)
35 Responsibilities
A Assistant Secretary - Indian Affairs discharges the duties of the Secretary of Interior with the authority to direct responsibility to protect and preserve Indian trust assets provides program and budget support oversees policies and programs for overall compliance with NEPA and reviews and acts on any NEPA documents that are raised to the Assistant Secretary level
B Deputy Assistant Secretary ndash Management reviews and acts on any NEPA documents that are raised to the Deputy Assistant Secretary level and reviews and acts upon IA policy to comply with NEPA
Release 10-33 Replaces 59 IAM 3 issued 102599
INDIAN AFFAIRS MANUAL Part 59 Environmental and Cultural Resources Management Chapter 3 National Environmental Policy Act Page 2
INDIAN AFFAIRS MANUAL Part 59 Environmental and Cultural Resources Management Chapter 3 National Environmental Policy Act Page 3
C Director Bureau of Indian Affairs ensures appropriate organizational arrangements resources and personnel are available to comply with NEPA for all actions of the BIA
D Director Office of Facilities Environmental and Cultural Resources ensures the interdisciplinary capabilities of the Division of Environmental and Cultural Resources Management as required by Section 102(A) of NEPA and delegates responsibility to the Deputy Director Office of Facilities Management and Construction for signing Federal agency NEPA compliance documents for decisions that rest with the Office of Facilities Management and Construction
E Deputy Director Office of Facilities Management and Construction ensures compliance with NEPA for federal actions controlled by OFMC and signs NEPA documents for decisions that rest with the Office of Facilities Management and Construction
F Chief Division of Environmental and Cultural Resources Management establishes IArsquos environmental management policies guidance and standards for complying with environmental statutory and regulatory requirements and Environmental Executive Orders oversees IA NEPA compliance activities and appoints a Central Office NEPA Coordinator
G Central Office NEPA Coordinator coordinates IA NEPA activities and serves as NEPA representative for IA with other Offices Bureaus and Agencies drafts policy and procedures for implementing NEPA actions coordinates the Federal Register notifications and distribution of Environmental Impact Statements conducts Internal Control Reviews of the NEPA program manages IArsquos federal and Departmental NEPA reporting requirements and coordinates NEPA training and meetings for BIA and IA staff
H Regional Directors review and act on any NEPA documents including Categorical Exclusions Environmental Assessments and Environmental Impact Statements that are not otherwise delegated to the Agency level
I IA Program Managers ensure that federal actions under their control comply with NEPA
J Regional NEPA Coordinators serve as the Regionsrsquo professional environmental representatives for providing technical advice to Regional Directors regarding proper compliance with NEPA take the lead for ensuring NEPA analysis is conducted in accordance with the authority and guidance referenced in this chapter for any BIA action originating in the Regions and requiring Regional Directorsrsquo approval review environmental documents (Categorical Exclusions Environmental Assessments and Environmental Impact Statements) for actions occurring within the Regions including documents prepared by BIA as well as documents prepared by other agencies for
Release 10-33 Replaces 59 IAM 3 issued 102599
INDIAN AFFAIRS MANUAL Part 59 Environmental and Cultural Resources Management Chapter 3 National Environmental Policy Act Page 4
activities occurring on or affecting Indian trust lands serve as the Regionsrsquo representatives for cooperating agencies on environmental analysis affecting Trust lands and monitor and ensure that all required mitigation measures are carried out
I Agency Superintendents and Program Directors carry out at the Agency Program level those NEPA responsibilities delegated by the Regional Director Such delegation will only be made where the Agency or Program Office has appropriate expertise on staff or otherwise readily available
J Agency and Program Environmental Specialists perform those responsibilities of a Regional NEPA Coordinator that may be required to enable the Agency Superintendent or Program Representative to meet responsibilities that have been delegated to them relating NEPA
36 Definitions
A Major federal action Indian Affairs adopts the 43 CFR sect46100 definition of federal action as synonymous with any reference to major federal action The definition is as follows ldquo(a) A bureau proposed action is subject to the procedural requirements of NEPA if it would cause effects on the human environment (40 CFR 150814) and is subject to bureau control and responsibility (40 CFR 150818) The determination of whether a proposed action is subject to the procedural requirements of NEPA depends on the extent to which bureaus exercise control and responsibility over the proposed action and whether Federal funding or approval are necessary to implement it If Federal funding is provided with no Federal agency control as to the expenditure of such funds by the recipient NEPA compliance is not necessary The proposed action is not subject to the procedural requirements of NEPA if it is exempt from the requirements of section 102(2) of NEPA (b) A bureau shall apply the procedural requirements of NEPA when the proposal is developed to the point that (1) The bureau has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and (2) The effects of the proposed action can be meaningfully evaluated (40 CFR 150823)rdquo
B NEPA documents There are five NEPA documents IA may prepare they are a Categorical Exclusion Exception Review (CEER) Checklist an Environmental Assessment a Finding of No Significant Impact (FONSI) an Environmental Impact Statement (EIS) and a Record of Decision (ROD)
Release 10-33 Replaces 59 IAM 3 issued 102599
APPENDIX 17
NEPArsquoS FORTY MOST ASKED QUESTIONS Table of Contents
1 Range of Alternatives 1
2 Alternatives Outside the Capability of Applicant or Jurisdiction of Agency 1
3 No-Action Alternative 2
4 Agencys Preferred Alternative 3
5 Proposed Action v Preferred Alternative 3
6 Environmentally Preferable Alternative 4
7 Difference Between Sections of EIS on Alternatives and Environmental Consequences 5
8 Early Application of NEPA 5
9 Applicant Who Needs Other Permits 6
10 Limitations on Action During 30-Day Review Period for Final EIS 7
11 Limitations on Actions by an Applicant During EIS Process 7
12 Effective Date and Enforceability of the Regulations 8
13 Use of Scoping Before Notice of Intent to Prepare EIS 9
14 Rights and Responsibilities of Lead and Cooperating Agencies 9
15 Commenting Responsibilities of EPA 11
16 Third Party Contracts 12
17 Disclosure Statement to Avoid Conflict of Interest 12
18 Uncertainties About Indirect Effects of A Proposal 13
19 Mitigation Measures 13
20 Worst Case Analysis [Withdrawn] 14
i
21 Combining Environmental and Planning Documents 14
22 State and Federal Agencies as Joint Lead Agencies 15
23 Conflicts of Federal Proposal With Land Use Plans Policies or Controls 15
24 Environmental Impact Statements on Policies Plans or Programs 16
25 Appendices and Incorporation by Reference 17
26 Index and Keyword Index in EISs 18
27 List of Preparers 19
28 Advance or Xerox Copies of EIS 19
29 Responses to Comments 20
30 Adoption of EISs 22
31 Application of Regulations to Independent Regulatory Agencies 23
32 Supplements to Old EISs 23
33 Referrals 24
34 Records of Decision 24
35 Time Required for the NEPA Process 25
36 Environmental Assessments (EA) 26
37 Findings of No Significant Impact (FONSI) 26
38 Public Availability of EAs v FONSIs 27
39 Mitigation Measures Imposed in EAs and FONSIs 27
40 Propriety of Issuing EA When Mitigation Reduces Impacts 28
ENDNOTES 29
ii
1a Range of Alternatives What is meant by range of alternatives as referred to in Sec 15051(e)
A The phrase range of alternatives refers to the alternatives discussed in environmental documents It includes all reasonable alternatives which must be rigorously explored and objectively evaluated as well as those other alternatives which are eliminated from detailed study with a brief discussion of the reasons for eliminating them Section 150214 A decisionmaker must not consider alternatives beyond the range of alternatives discussed in the relevant environmental documents Moreover a decisionmaker must in fact consider all the alternatives discussed in an EIS Section 15051(e)
1b How many alternatives have to be discussed when there is an infinite number of possible alternatives
A For some proposals there may exist a very large or even an infinite number of possible reasonable alternatives For example a proposal to designate wilderness areas within a National Forest could be said to involve an infinite number of alternatives from 0 to 100 percent of the forest When there are potentially a very large number of alternatives only a reasonable number of examples covering the full spectrum of alternatives must be analyzed and compared in the EIS An appropriate series of alternatives might include dedicating 0 10 30 50 70 90 or 100 percent of the Forest to wilderness What constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case
2a Alternatives Outside the Capability of Applicant or Jurisdiction of Agency If an EIS is prepared in connection with an application for a permit or other federal approval must the EIS rigorously analyze and discuss alternatives that are outside the capability of the applicant or can it be limited to reasonable alternatives that can be carried out by the applicant
A Section 150214 requires the EIS to examine all reasonable alternatives to the proposal In determining the scope of alternatives to be considered the emphasis is on what is reasonable rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense rather than simply desirable from the standpoint of the applicant
2b Must the EIS analyze alternatives outside the jurisdiction or capability of the agency or beyond what Congress has authorized
A An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable A potential conflict with local or federal law does not necessarily render an alternative unreasonable although such conflicts must be considered Section 15062(d) Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable because the EIS may
1
serve as the basis for modifying the Congressional approval or funding in light of NEPAs goals and policies Section 15001(a)
3 No-Action Alternative What does the no action alternative include If an agency is under a court order or legislative command to act must the EIS address the no action alternative
A Section 150214(d) requires the alternatives analysis in the EIS to include the alternative of no action There are two distinct interpretations of no action that must be considered depending on the nature of the proposal being evaluated The first situation might involve an action such as updating a land management plan where ongoing programs initiated under existing legislation and regulations will continue even as new plans are developed In these cases no action is no change from current management direction or level of management intensity To construct an alternative that is based on no management at all would be a useless academic exercise Therefore the no action alternative may be thought of in terms of continuing with the present course of action until that action is changed Consequently projected impacts of alternative management schemes would be compared in the EIS to those impacts projected for the existing plan In this case alternatives would include management plans of both greater and lesser intensity especially greater and lesser levels of resource development
The second interpretation of no action is illustrated in instances involving federal decisions on proposals for projects No action in such cases would mean the proposed activity would not take place and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward
Where a choice of no action by the agency would result in predictable actions by others this consequence of the no action alternative should be included in the analysis For example if denial of permission to build a railroad to a facility would lead to construction of a road and increased truck traffic the EIS should analyze this consequence of the no action alternative
In light of the above it is difficult to think of a situation where it would not be appropriate to address a no action alternative Accordingly the regulations require the analysis of the no action alternative even if the agency is under a court order or legislative command to act This analysis provides a benchmark enabling decisionmakers to compare the magnitude of environmental effects of the action alternatives It is also an example of a reasonable alternative outside the jurisdiction of the agency which must be analyzed Section 150214(c) See Question 2 above Inclusion of such an analysis in the EIS is necessary to inform the Congress the public and the President as intended by NEPA Section 15001(a)
2
4a Agencys Preferred Alternative What is the agencys preferred alternative
A The agencys preferred alternative is the alternative which the agency believes would fulfill its statutory mission and responsibilities giving consideration to economic environmental technical and other factors The concept of the agencys preferred alternative is different from the environmentally preferable alternative although in some cases one alternative may be both See Question 6 below It is identified so that agencies and the public can understand the lead agencys orientation
4b Does the preferred alternative have to be identified in the Draft EIS and the Final EIS or just in the Final EIS
A Section 150214(e) requires the section of the EIS on alternatives to identify the agencys preferred alternative if one or more exists in the draft statement and identify such alternative in the final statement This means that if the agency has a preferred alternative at the Draft EIS stage that alternative must be labeled or identified as such in the Draft EIS If the responsible federal official in fact has no preferred alternative at the Draft EIS stage a preferred alternative need not be identified there By the time the Final EIS is filed Section 150214(e) presumes the existence of a preferred alternative and requires its identification in the Final EIS unless another law prohibits the expression of such a preference
4c Who recommends or determines the preferred alternative
A The lead agencys official with line responsibility for preparing the EIS and assuring its adequacy is responsible for identifying the agencys preferred alternative(s) The NEPA regulations do not dictate which official in an agency shall be responsible for preparation of EISs but agencies can identify this official in their implementing procedures pursuant to Section 15073
Even though the agencys preferred alternative is identified by the EIS preparer in the EIS the statement must be objectively prepared and not slanted to support the choice of the agencys preferred alternative over the other reasonable and feasible alternatives
5a Proposed Action v Preferred Alternative Is the proposed action the same thing as the preferred alternative
A The proposed action may be but is not necessarily the agencys preferred alternative The proposed action may be a proposal in its initial form before undergoing analysis in the EIS process If the proposed action is [46 FR 18028] internally generated such as preparing a land management plan the proposed action might end up as the agencys preferred alternative On the other hand the proposed action may be granting an application to a non-federal entity for a permit The agency may or may not have a preferred alternative at the Draft EIS stage (see Question 4 above) In that case the agency may decide at the Final EIS
3
stage on the basis of the Draft EIS and the public and agency comments that an alternative other than the proposed action is the agencys preferred alternative
5b Is the analysis of the proposed action in an EIS to be treated differently from the analysis of alternatives
A The degree of analysis devoted to each alternative in the EIS is to be substantially similar to that devoted to the proposed action Section 150214 is titled Alternatives including the proposed action to reflect such comparable treatment Section 150214(b) specifically requires substantial treatment in the EIS of each alternative including the proposed action This regulation does not dictate an amount of information to be provided but rather prescribes a level of treatment which may in turn require varying amounts of information to enable a reviewer to evaluate and compare alternatives
6a Environmentally Preferable Alternative What is the meaning of the term environmentally preferable alternative as used in the regulations with reference to Records of Decision How is the term environment used in the phrase
A Section 15052(b) requires that in cases where an EIS has been prepared the Record of Decision (ROD) must identify all alternatives that were considered specifying the alternative or alternatives which were considered to be environmentally preferable The environmentally preferable alternative is the alternative that will promote the national environmental policy as expressed in NEPAs Section 101 Ordinarily this means the alternative that causes the least damage to the biological and physical environment it also means the alternative which best protects preserves and enhances historic cultural and natural resources
The Council recognizes that the identification of the environmentally preferable alternative may involve difficult judgments particularly when one environmental value must be balanced against another The public and other agencies reviewing a Draft EIS can assist the lead agency to develop and determine environmentally preferable alternatives by providing their views in comments on the Draft EIS Through the identification of the environmentally preferable alternative the decisionmaker is clearly faced with a choice between that alternative and others and must consider whether the decision accords with the Congressionally declared policies of the Act
6b Who recommends or determines what is environmentally preferable
A The agency EIS staff is encouraged to make recommendations of the environmentally preferable alternative(s) during EIS preparation In any event the lead agency official responsible for the EIS is encouraged to identify the environmentally preferable alternative(s) in the EIS In all cases commentors from other agencies and the public are also encouraged to address this question The agency must identify the environmentally preferable alternative in the ROD
4
7 Difference Between Sections of EIS on Alternatives and Environmental Consequences What is the difference between the sections in the EIS on alternatives and environmental consequences How do you avoid duplicating the discussion of alternatives in preparing these two sections
A The alternatives section is the heart of the EIS This section rigorously explores and objectively evaluates all reasonable alternatives including the proposed action Section 150214 It should include relevant comparisons on environmental and other grounds The environmental consequences section of the EIS discusses the specific environmental impacts or effects of each of the alternatives including the proposed action Section 150216 In order to avoid duplication between these two sections most of the alternatives section should be devoted to describing and comparing the alternatives Discussion of the environmental impacts of these alternatives should be limited to a concise descriptive summary of such impacts in a comparative form including charts or tables thus sharply defining the issues and providing a clear basis for choice among options Section 150214 The environmental consequences section should be devoted largely to a scientific analysis of the direct and indirect environmental effects of the proposed action and of each of the alternatives It forms the analytic basis for the concise comparison in the alternatives section
8 Early Application of NEPA Section 15012(d) of the NEPA regulations requires agencies to provide for the early application of NEPA to cases where actions are planned by private applicants or non-Federal entities and are at some stage subject to federal approval of permits loans loan guarantees insurance or other actions What must and can agencies do to apply NEPA early in these cases
A Section 15012(d) requires federal agencies to take steps toward ensuring that private parties and state and local entities initiate environmental studies as soon as federal involvement in their proposals can be foreseen This section is intended to ensure that environmental factors are considered at an early stage in the planning process and to avoid the situation where the applicant for a federal permit or approval has completed planning and eliminated all alternatives to the proposed action by the time the EIS process commences or before the EIS process has been completed
Through early consultation business applicants and approving agencies may gain better appreciation of each others needs and foster a decisionmaking process which avoids later unexpected confrontations
Federal agencies are required by Section 15073(b) to develop procedures to carry out Section 15012(d) The procedures should include an outreach program such as a means for prospective applicants to conduct pre-application consultations with the lead and cooperating agencies Applicants need to find out in advance of project planning what environmental studies or other information will be required and what mitigation requirements are likely in connection with the later federal NEPA process Agencies should
5
designate staff to advise potential applicants of the agencys NEPA information requirements and should publicize their pre-application procedures and information requirements in newsletters or other media used by potential applicants
Complementing Section 15012(d) Section 15065(a) requires agencies to assist applicants by outlining the types of information required in those cases where the agency requires the applicant to submit environmental data for possible use by the agency in preparing an EIS
Section 15065(b) allows agencies to authorize preparation of environmental assessments by applicants Thus the procedures should also include a means for anticipating and utilizing applicants environmental studies or early corporate environmental assessments to fulfill some of the federal agencys NEPA obligations However in such cases the agency must still evaluate independently the environmental issues [46 FR 18029] and take responsibility for the environmental assessment
These provisions are intended to encourage and enable private and other non-federal entities to build environmental considerations into their own planning processes in a way that facilitates the application of NEPA and avoids delay
9 Applicant Who Needs Other Permits To what extent must an agency inquire into whether an applicant for a federal permit funding or other approval of a proposal will also need approval from another agency for the same proposal or some other related aspect of it
A Agencies must integrate the NEPA process into other planning at the earliest possible time to insure that planning and decisions reflect environmental values to avoid delays later in the process and to head off potential conflicts Specifically the agency must provide for cases where actions are planned by applicants so that designated staff are available to advise potential applicants of studies or other information that will foreseeably be required for the later federal action the agency shall consult with the applicant if the agency foresees its own involvement in the proposal and it shall insure that the NEPA process commences at the earliest possible time Section 15012(d) (See Question 8)
The regulations emphasize agency cooperation early in the NEPA process Section 15016 Section 15017 on scoping also provides that all affected Federal agencies are to be invited to participate in scoping the environmental issues and to identify the various environmental review and consultation requirements that may apply to the proposed action Further Section 150225(b) requires that the draft EIS list all the federal permits licenses and other entitlements that are needed to implement the proposal
These provisions create an affirmative obligation on federal agencies to inquire early and to the maximum degree possible to ascertain whether an applicant is or will be seeking other federal assistance or approval or whether the applicant is waiting until a proposal has been substantially developed before requesting federal aid or approval
6
Thus a federal agency receiving a request for approval or assistance should determine whether the applicant has filed separate requests for federal approval or assistance with other federal agencies Other federal agencies that are likely to become involved should then be contacted and the NEPA process coordinated to insure an early and comprehensive analysis of the direct and indirect effects of the proposal and any related actions The agency should inform the applicant that action on its application may be delayed unless it submits all other federal applications (where feasible to do so) so that all the relevant agencies can work together on the scoping process and preparation of the EIS
10a Limitations on Action During 30-Day Review Period for Final EIS What actions by agencies andor applicants are allowed during EIS preparation and during the 30-day review period after publication of a final EIS
A No federal decision on the proposed action shall be made or recorded until at least 30 days after the publication by EPA of notice that the particular EIS has been filed with EPA Sections 15052 and 150610 Section 15052 requires this decision to be stated in a public Record of Decision
Until the agency issues its Record of Decision no action by an agency or an applicant concerning the proposal shall be taken which would have an adverse environmental impact or limit the choice of reasonable alternatives Section 15061(a) But this does not preclude preliminary planning or design work which is needed to support an application for permits or assistance Section 5061(d)
When the impact statement in question is a program EIS no major action concerning the program may be taken which may significantly affect the quality of the human environment unless the particular action is justified independently of the program is accompanied by its own adequate environmental impact statement and will not prejudice the ultimate decision on the program Section 15061(c)
10b Do these limitations on action (described in Question 10a) apply to state or local agencies that have statutorily delegated responsibility for preparation of environmental documents required by NEPA for example under the HUD Block Grant program
A Yes these limitations do apply without any variation from their application to federal agencies
11 Limitations on Actions by an Applicant During EIS Process What actions must a lead agency take during the NEPA process when it becomes aware that a non-federal applicant is about to take an action within the agencys jurisdiction that would either have an adverse environmental impact or limit the choice of reasonable alternatives (eg prematurely commit money or other resources towards the completion of the proposal)
7
A The federal agency must notify the applicant that the agency will take strong affirmative steps to insure that the objectives and procedures of NEPA are fulfilled Section 15061(b) These steps could include seeking injunctive measures under NEPA or the use of sanctions available under either the agencys permitting authority or statutes setting forth the agencys statutory mission For example the agency might advise an applicant that if it takes such action the agency will not process its application
12a Effective Date and Enforceability of the Regulations What actions are subject to the Councils new regulations and what actions are grand-fathered under the old guidelines
A The effective date of the Councils regulations was July 30 1979 (except for certain HUD programs under the Housing and Community Development Act 42 USC 5304(h) and certain state highway programs that qualify under Section 102(2)(D) of NEPA for which the regulations became effective on November 30 1979) All the provisions of the regulations are binding as of that date including those covering decisionmaking public participation referrals limitations on actions EIS supplements etc For example a Record of Decision would be prepared even for decisions where the draft EIS was filed before July 30 1979
But in determining whether or not the new regulations apply to the preparation of a particular environmental document the relevant factor is the date of filing of the draft of that document Thus the new regulations do not require the redrafting of an EIS or supplement if the draft EIS or supplement was filed before July 30 1979 However a supplement prepared after the effective date of the regulations for an EIS issued in final before the effective date of the regulations would be controlled by the regulations
Even though agencies are not required to apply the regulations to an EIS or other document for which the draft was filed prior to July 30 1979 the regulations encourage agencies to follow the regulations to the fullest extent practicable ie if it is feasible to do so in preparing the final document Section 150612(a)
12b Are projects authorized by Congress before the effective date of the Councils regulations grand-fathered
A No The date of Congressional authorization for a project is not determinative of whether the Councils regulations or former Guidelines apply to the particular proposal No incomplete projects or proposals of any kind are grand-fathered in whole or in part Only certain environmental documents for which the draft was issued before the effective date of the regulations are grand-fathered and [46 FR 18030] subject to the Councils former Guidelines
8
12c Can a violation of the regulations give rise to a cause of action
A While a trivial violation of the regulations would not give rise to an independent cause of action such a cause of action would arise from a substantial violation of the regulations Section 15003
13 Use of Scoping Before Notice of Intent to Prepare EIS Can the scoping process be used in connection with preparation of an environmental assessment ie before both the decision to proceed with an EIS and publication of a notice of intent
A Yes Scoping can be a useful tool for discovering alternatives to a proposal or significant impacts that may have been overlooked In cases where an environmental assessment is being prepared to help an agency decide whether to prepare an EIS useful information might result from early participation by other agencies and the public in a scoping process
The regulations state that the scoping process is to be preceded by a Notice of Intent (NOI) to prepare an EIS But that is only the minimum requirement Scoping may be initiated earlier as long as there is appropriate public notice and enough information available on the proposal so that the public and relevant agencies can participate effectively
However scoping that is done before the assessment and in aid of its preparation cannot substitute for the normal scoping process after publication of the NOI unless the earlier public notice stated clearly that this possibility was under consideration and the NOI expressly provides that written comments on the scope of alternatives and impacts will still be considered
14a Rights and Responsibilities of Lead and Cooperating Agencies What are the respective rights and responsibilities of lead and cooperating agencies What letters and memoranda must be prepared
A After a lead agency has been designated (Sec 15015) that agency has the responsibility to solicit cooperation from other federal agencies that have jurisdiction by law or special expertise on any environmental issue that should be addressed in the EIS being prepared Where appropriate the lead agency should seek the cooperation of state or local agencies of similar qualifications When the proposal may affect an Indian reservation the agency should consult with the Indian tribe Section 15085 The request for cooperation should come at the earliest possible time in the NEPA process
After discussions with the candidate cooperating agencies the lead agency and the cooperating agencies are to determine by letter or by memorandum which agencies will undertake cooperating responsibilities To the extent possible at this stage responsibilities for specific issues should be assigned The allocation of responsibilities will be completed during scoping Section 15017(a)(4)
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Cooperating agencies must assume responsibility for the development of information and the preparation of environmental analyses at the request of the lead agency Section 15016(b)(3) Cooperating agencies are now required by Section 15016 to devote staff resources that were normally primarily used to critique or comment on the Draft EIS after its preparation much earlier in the NEPA process -- primarily at the scoping and Draft EIS preparation stages If a cooperating agency determines that its resource limitations preclude any involvement or the degree of involvement (amount of work) requested by the lead agency it must so inform the lead agency in writing and submit a copy of this correspondence to the Council Section 15016(c)
In other words the potential cooperating agency must decide early if it is able to devote any of its resources to a particular proposal For this reason the regulation states that an agency may reply to a request for cooperation that other program commitments preclude any involvement or the degree of involvement requested in the action that is the subject of the environmental impact statement (Emphasis added) The regulation refers to the action rather than to the EIS to clarify that the agency is taking itself out of all phases of the federal action not just draft EIS preparation This means that the agency has determined that it cannot be involved in the later stages of EIS review and comment as well as decisionmaking on the proposed action For this reason cooperating agencies with jurisdiction by law (those which have permitting or other approval authority) cannot opt out entirely of the duty to cooperate on the EIS See also Question 15 relating specifically to the responsibility of EPA
14b How are disputes resolved between lead and cooperating agencies concerning the scope and level of detail of analysis and the quality of data in impact statements
A Such disputes are resolved by the agencies themselves A lead agency of course has the ultimate responsibility for the content of an EIS But it is supposed to use the environmental analysis and recommendations of cooperating agencies with jurisdiction by law or special expertise to the maximum extent possible consistent with its own responsibilities as lead agency Section 15016(a)(2)
If the lead agency leaves out a significant issue or ignores the advice and expertise of the cooperating agency the EIS may be found later to be inadequate Similarly where cooperating agencies have their own decisions to make and they intend to adopt the environmental impact statement and base their decisions on it one document should include all of the information necessary for the decisions by the cooperating agencies Otherwise they may be forced to duplicate the EIS process by issuing a new more complete EIS or Supplemental EIS even though the original EIS could have sufficed if it had been properly done at the outset Thus both lead and cooperating agencies have a stake in producing a document of good quality Cooperating agencies also have a duty to participate fully in the scoping process to ensure that the appropriate range of issues is determined early in the EIS process
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Because the EIS is not the Record of Decision but instead constitutes the information and analysis on which to base a decision disagreements about conclusions to be drawn from the EIS need not inhibit agencies from issuing a joint document or adopting another agencys EIS if the analysis is adequate Thus if each agency has its own preferred alternative both can be identified in the EIS Similarly a cooperating agency with jurisdiction by law may determine in its own ROD that alternative A is the environmentally preferable action even though the lead agency has decided in its separate ROD that Alternative B is environmentally preferable
14c What are the specific responsibilities of federal and state cooperating agencies to review draft EISs
A Cooperating agencies (ie agencies with jurisdiction by law or special expertise) and agencies that are authorized to develop or enforce environmental standards must comment on environmental impact statements within their jurisdiction expertise or authority Sections 15032 15085 If a cooperating agency is satisfied that its views are adequately reflected in the environmental impact statement it should simply comment accordingly Conversely if the cooperating agency determines that a draft EIS is incomplete inadequate or inaccurate or it has other comments it should promptly make such comments conforming to the requirements of specificity in section 15033
14d How is the lead agency to treat the comments of another agency with jurisdiction by law or special expertise which has failed or refused to cooperate or participate in scoping or EIS preparation
A A lead agency has the responsibility to respond to all substantive comments raising significant issues regarding a draft EIS Section 15034 However cooperating agencies are generally under an obligation to raise issues or otherwise participate in the EIS process during scoping and EIS preparation if they reasonably can do so In practical terms if a cooperating agency fails to cooperate at the outset such as during scoping it will find that its comments at a later stage will not be as persuasive to the lead agency
15 Commenting Responsibilities of EPA Are EPAs responsibilities to review and comment on the environmental effects of agency proposals under Section 309 of the Clean Air Act independent of its responsibility as a cooperating agency
A Yes EPA has an obligation under Section 309 of the Clean Air Act to review and comment in writing on the environmental impact of any matter relating to the authority of the Administrator contained in proposed legislation federal construction projects other federal actions requiring EISs and new regulations 42 USC Sec 7609 This obligation is independent of its role as a cooperating agency under the NEPA regulations
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16 Third Party Contracts What is meant by the term third party contracts in connection with the preparation of an EIS See Section 15065(c) When can third party contracts be used
A As used by EPA and other agencies the term third party contract refers to the preparation of EISs by contractors paid by the applicant In the case of an EIS for a National Pollution Discharge Elimination System (NPDES) permit the applicant aware in the early planning stages of the proposed project of the need for an EIS contracts directly with a consulting firm for its preparation See 40 CFR 6604(g) The third party is EPA which under Section 15065(c) must select the consulting firm even though the applicant pays for the cost of preparing the EIS The consulting firm is responsible to EPA for preparing an EIS that meets the requirements of the NEPA regulations and EPAs NEPA procedures It is in the applicants interest that the EIS comply with the law so that EPA can take prompt action on the NPDES permit application The third party contract method under EPAs NEPA procedures is purely voluntary though most applicants have found it helpful in expediting compliance with NEPA
If a federal agency uses third party contracting the applicant may undertake the necessary paperwork for the solicitation of a field of candidates under the agencys direction so long as the agency complies with Section 15065(c) Federal procurement requirements do not apply to the agency because it incurs no obligations or costs under the contract nor does the agency procure anything under the contract
17a Disclosure Statement to Avoid Conflict of Interest If an EIS is prepared with the assistance of a consulting firm the firm must execute a disclosure statement What criteria must the firm follow in determining whether it has any financial or other interest in the outcome of the project which would cause a conflict of interest
A Section 15065(c) which specifies that a consulting firm preparing an EIS must execute a disclosure statement does not define financial or other interest in the outcome of the project The Council interprets this term broadly to cover any known benefits other than general enhancement of professional reputation This includes any financial benefit such as a promise of future construction or design work on the project as well as indirect benefits the consultant is aware of (eg if the project would aid proposals sponsored by the firms other clients) For example completion of a highway project may encourage construction of a shopping center or industrial park from which the consultant stands to benefit If a consulting firm is aware that it has such an interest in the decision on the proposal it should be disqualified from preparing the EIS to preserve the objectivity and integrity of the NEPA process
When a consulting firm has been involved in developing initial data and plans for the project but does not have any financial or other interest in the outcome of the decision it need not be disqualified from preparing the EIS However a disclosure statement in the draft EIS should clearly state the scope and extent of the firms prior involvement to expose any potential conflicts of interest that may exist
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17b If the firm in fact has no promise of future work or other interest in the outcome of the proposal may the firm later bid in competition with others for future work on the project if the proposed action is approved
A Yes
18 Uncertainties About Indirect Effects of A Proposal How should uncertainties about indirect effects of a proposal be addressed for example in cases of disposal of federal lands when the identity or plans of future landowners is unknown
A The EIS must identify all the indirect effects that are known and make a good faith effort to explain the effects that are not known but are reasonably foreseeable Section 15088(b) In the example if there is total uncertainty about the identity of future land owners or the nature of future land uses then of course the agency is not required to engage in speculation or contemplation about their future plans But in the ordinary course of business people do make judgments based upon reasonably foreseeable occurrences It will often be possible to consider the likely purchasers and the development trends in that area or similar areas in recent years or the likelihood that the land will be used for an energy project shopping center subdivision farm or factory The agency has the responsibility to make an informed judgment and to estimate future impacts on that basis especially if trends are ascertainable or potential purchasers have made themselves known The agency cannot ignore these uncertain but probable effects of its decisions
19a Mitigation Measures What is the scope of mitigation measures that must be discussed
A The mitigation measures discussed in an EIS must cover the range of impacts of the proposal The measures must include such things as design alternatives that would decrease pollution emissions construction impacts esthetic intrusion as well as relocation assistance possible land use controls that could be enacted and other possible efforts Mitigation measures must be considered even for impacts that by themselves would not be considered significant Once the proposal itself is considered as a whole to have significant effects all of its specific effects on the environment (whether or not significant) must be considered and mitigation measures must be developed where it is feasible to do so Sections 150214(f) 150216(h) 150814
19b How should an EIS treat the subject of available mitigation measures that are (1) outside the jurisdiction of the lead or cooperating agencies or (2) unlikely to be adopted or enforced by the responsible agency
A All relevant reasonable mitigation measures that could improve the project are to be identified even if they are outside the jurisdiction of the lead agency or the cooperating agencies and thus would not be committed as part of the RODs of these agencies Sections 150216(h) 15052(c) This will serve to [46 FR 18032] alert agencies or officials who can implement these extra measures and will encourage them to do so Because the EIS is the most comprehensive environmental document it is an ideal vehicle in which to lay out not
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only the full range of environmental impacts but also the full spectrum of appropriate mitigation
However to ensure that environmental effects of a proposed action are fairly assessed the probability of the mitigation measures being implemented must also be discussed Thus the EIS and the Record of Decision should indicate the likelihood that such measures will be adopted or enforced by the responsible agencies Sections 150216(h) 15052 If there is a history of non-enforcement or opposition to such measures the EIS and Record of Decision should acknowledge such opposition or non-enforcement If the necessary mitigation measures will not be ready for a long period of time this fact of course should also be recognized
20 Worst Case Analysis [Withdrawn]
21 Combining Environmental and Planning Documents Where an EIS or an EA is combined with another project planning document (sometimes called piggybacking) to what degree may the EIS or EA refer to and rely upon information in the project document to satisfy NEPAs requirements
A Section 150225 of the regulations requires that draft EISs be prepared concurrently and integrated with environmental analyses and related surveys and studies required by other federal statutes In addition Section 15064 allows any environmental document prepared in compliance with NEPA to be combined with any other agency document to reduce duplication and paperwork However these provisions were not intended to authorize the preparation of a short summary or outline EIS attached to a detailed project report or land use plan containing the required environmental impact data In such circumstances the reader would have to refer constantly to the detailed report to understand the environmental impacts and alternatives which should have been found in the EIS itself
The EIS must stand on its own as an analytical document which fully informs decisionmakers and the public of the environmental effects of the proposal and those of the reasonable alternatives Section 15021 But as long as the EIS is clearly identified and is self-supporting it can be physically included in or attached to the project report or land use plan and may use attached report material as technical backup
Forest Service environmental impact statements for forest management plans are handled in this manner The EIS identifies the agencys preferred alternative which is developed in detail as the proposed management plan The detailed proposed plan accompanies the EIS through the review process and the documents are appropriately cross-referenced The proposed plan is useful for EIS readers as an example to show how one choice of management options translates into effects on natural resources This procedure permits initiation of the 90-day public review of proposed forest plans which is required by the National Forest Management Act
All the alternatives are discussed in the EIS which can be read as an independent document The details of the management plan are not repeated in the EIS and vice versa This is a
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reasonable functional separation of the documents the EIS contains information relevant to the choice among alternatives the plan is a detailed description of proposed management activities suitable for use by the land managers This procedure provides for concurrent compliance with the public review requirements of both NEPA and the National Forest Management Act
Under some circumstances a project report or management plan may be totally merged with the EIS and the one document labeled as both EIS and management plan or project report This may be reasonable where the documents are short or where the EIS format and the regulations for clear analytical EISs also satisfy the requirements for a project report
22 State and Federal Agencies as Joint Lead Agencies May state and federal agencies serve as joint lead agencies If so how do they resolve law policy and resource conflicts under NEPA and the relevant state environmental policy act How do they resolve differences in perspective where for example national and local needs may differ
A Under Section 15015(b) federal state or local agencies as long as they include at least one federal agency may act as joint lead agencies to prepare an EIS Section 15062 also strongly urges state and local agencies and the relevant federal agencies to cooperate fully with each other This should cover joint research and studies planning activities public hearings environmental assessments and the preparation of joint EISs under NEPA and the relevant little NEPA state laws so that one document will satisfy both laws
The regulations also recognize that certain inconsistencies may exist between the proposed federal action and any approved state or local plan or law The joint document should discuss the extent to which the federal agency would reconcile its proposed action with such plan or law Section 15062(d) (See Question 23)
Because there may be differences in perspective as well as conflicts among [46 FR 18033] federal state and local goals for resources management the Council has advised participating agencies to adopt a flexible cooperative approach The joint EIS should reflect all of their interests and missions clearly identified as such The final document would then indicate how state and local interests have been accommodated or would identify conflicts in goals (eg how a hydroelectric project which might induce second home development would require new land use controls) The EIS must contain a complete discussion of scope and purpose of the proposal alternatives and impacts so that the discussion is adequate to meet the needs of local state and federal decisionmakers
23a Conflicts of Federal Proposal With Land Use Plans Policies or Controls How should an agency handle potential conflicts between a proposal and the objectives of Federal state or local land use plans policies and controls for the area concerned See Sec 150216(c)
A The agency should first inquire of other agencies whether there are any potential conflicts If there would be immediate conflicts or if conflicts could arise in the future when the plans are finished (see Question 23(b) below) the EIS must acknowledge and describe the extent
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of those conflicts If there are any possibilities of resolving the conflicts these should be explained as well The EIS should also evaluate the seriousness of the impact of the proposal on the land use plans and policies and whether or how much the proposal will impair the effectiveness of land use control mechanisms for the area Comments from officials of the affected area should be solicited early and should be carefully acknowledged and answered in the EIS
23b What constitutes a land use plan or policy for purposes of this discussion
A The term land use plans includes all types of formally adopted documents for land use planning zoning and related regulatory requirements Local general plans are included even though they are subject to future change Proposed plans should also be addressed if they have been formally proposed by the appropriate government body in a written form and are being actively pursued by officials of the jurisdiction Staged plans which must go through phases of development such as the Water Resources Councils Level A B and C planning process should also be included even though they are incomplete
The term policies includes formally adopted statements of land use policy as embodied in laws or regulations It also includes proposals for action such as the initiation of a planning process or a formally adopted policy statement of the local regional or state executive branch even if it has not yet been formally adopted by the local regional or state legislative body
23c What options are available for the decisionmaker when conflicts with such plans or policies are identified
A After identifying any potential land use conflicts the decisionmaker must weigh the significance of the conflicts among all the other environmental and non-environmental factors that must be considered in reaching a rational and balanced decision Unless precluded by other law from causing or contributing to any inconsistency with the land use plans policies or controls the decisionmaker retains the authority to go forward with the proposal despite the potential conflict In the Record of Decision the decisionmaker must explain what the decision was how it was made and what mitigation measures are being imposed to lessen adverse environmental impacts of the proposal among the other requirements of Section 15052 This provision would require the decisionmaker to explain any decision to override land use plans policies or controls for the area
24a Environmental Impact Statements on Policies Plans or Programs When are EISs required on policies plans or programs
A An EIS must be prepared if an agency proposes to implement a specific policy to adopt a plan for a group of related actions or to implement a specific statutory program or executive directive Section 150818 In addition the adoption of official policy in the form of rules regulations and interpretations pursuant to the Administrative Procedure Act treaties conventions or other formal documents establishing governmental or agency policy which
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will substantially alter agency programs could require an EIS Section 150818 In all cases the policy plan or program must have the potential for significantly affecting the quality of the human environment in order to require an EIS It should be noted that a proposal may exist in fact as well as by agency declaration that one exists Section 150823
24b When is an area-wide or overview EIS appropriate
A The preparation of an area-wide or overview EIS may be particularly useful when similar actions viewed with other reasonably foreseeable or proposed agency actions share common timing or geography For example when a variety of energy projects may be located in a single watershed or when a series of new energy technologies may be developed through federal funding the overview or area-wide EIS would serve as a valuable and necessary analysis of the affected environment and the potential cumulative impacts of the reasonably foreseeable actions under that program or within that geographical area
24c What is the function of tiering in such cases
A Tiering is a procedure which allows an agency to avoid duplication of paperwork through the incorporation by reference of the general discussions and relevant specific discussions from an environmental impact statement of broader scope into one of lesser scope or vice versa In the example given in Question 24b this would mean that an overview EIS would be prepared for all of the energy activities reasonably foreseeable in a particular geographic area or resulting from a particular development program This impact statement would be followed by site-specific or project-specific EISs The tiering process would make each EIS of greater use and meaning to the public as the plan or program develops without duplication of the analysis prepared for the previous impact statement
25a Appendices and Incorporation by Reference When is it appropriate to use appendices instead of including information in the body of an EIS
A The body of the EIS should be a succinct statement of all the information on environmental impacts and alternatives that the decisionmaker and the public need in order to make the decision and to ascertain that every significant factor has been examined The EIS must explain or summarize methodologies of research and modeling and the results of research that may have been conducted to analyze impacts and alternatives
Lengthy technical discussions of modeling methodology baseline studies or other work are best reserved for the appendix In other words if only technically trained individuals are likely to understand a particular discussion then it should go in the appendix and a plain language summary of the analysis and conclusions of that technical discussion should go in the text of the EIS
The final statement must also contain the agencys responses to comments on the draft EIS These responses will be primarily in the form of changes in the document itself but specific answers to each significant comment should also be included These specific responses may
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be placed in an appendix If the comments are especially voluminous summaries of the comments and responses will suffice (See Question 29 regarding the level of detail required for responses to comments)
25b How does an appendix differ from incorporation by reference
A First if at all possible the appendix accompanies the EIS whereas the material which is incorporated by reference does not accompany the EIS Thus the appendix should contain information that reviewers will be likely to want to examine The appendix should include material that pertains to preparation of a particular EIS Research papers directly relevant to the proposal lists of affected species discussion of the methodology of models used in the analysis of impacts extremely detailed responses to comments or other information would be placed in the appendix
The appendix must be complete and available at the time the EIS is filed Five copies of the appendix must be sent to EPA with five copies of the EIS for filing If the appendix is too bulky to be circulated it instead must be placed in conveniently accessible locations or furnished directly to commentors upon request If it is not circulated with the EIS the Notice of Availability published by EPA must so state giving a telephone number to enable potential commentors to locate or request copies of the appendix promptly
Material that is not directly related to preparation of the EIS should be incorporated by reference This would include other EISs research papers in the general literature technical background papers or other material that someone with technical training could use to evaluate the analysis of the proposal These must be made available either by citing the literature furnishing copies to central locations or sending copies directly to commentors upon request
Care must be taken in all cases to ensure that material incorporated by reference and the occasional appendix that does not accompany the EIS are in fact available for the full minimum public comment period
26a Index and Keyword Index in EISs How detailed must an EIS index be
A The EIS index should have a level of detail sufficient to focus on areas of the EIS of reasonable interest to any reader It cannot be restricted to the most important topics On the other hand it need not identify every conceivable term or phrase in the EIS If an agency believes that the reader is reasonably likely to be interested in a topic it should be included
26b Is a keyword index required
A No A keyword index is a relatively short list of descriptive terms that identifies the key concepts or subject areas in a document For example it could consist of 20 terms which describe the most significant aspects of an EIS that a future researcher would need type of
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proposal type of impacts type of environment geographical area sampling or modeling methodologies used This technique permits the compilation of EIS data banks by facilitating quick and inexpensive access to stored materials While a keyword index is not required by the regulations it could be a useful addition for several reasons First it can be useful as a quick index for reviewers of the EIS helping to focus on areas of interest Second if an agency keeps a listing of the keyword indexes of the EISs it produces the EIS preparers themselves will have quick access to similar research data and methodologies to aid their future EIS work Third a keyword index will be needed to make an EIS available to future researchers using EIS data banks that are being developed Preparation of such an index now when the document is produced will save a later effort when the data banks become operational
27a List of Preparers If a consultant is used in preparing an EIS must the list of preparers identify members of the consulting firm as well as the agency NEPA staff who were primarily responsible
A Section 150217 requires identification of the names and qualifications of persons who were primarily responsible for preparing the EIS or significant background papers including basic components of the statement This means that members of a consulting firm preparing material that is to become part of the EIS must be identified The EIS should identify these individuals even though the consultants contribution may have been modified by the agency
27b Should agency staff involved in reviewing and editing the EIS also be included in the list of preparers
A Agency personnel who wrote basic components of the EIS or significant background papers must of course be identified The EIS should also list the technical editors who reviewed or edited the statements
27c How much information should be included on each person listed
A The list of preparers should normally not exceed two pages Therefore agencies must determine which individuals had primary responsibility and need not identify individuals with minor involvement The list of preparers should include a very brief identification of the individuals involved their qualifications (expertise professional disciplines) and the specific portion of the EIS for which they are responsible This may be done in tabular form to cut down on length A line or two for each persons qualifications should be sufficient
28 Advance or Xerox Copies of EIS May an agency file xerox copies of an EIS with EPA pending the completion of printing the document
A Xerox copies of an EIS may be filed with EPA prior to printing only if the xerox copies are simultaneously made available to other agencies and the public Section 15069 of the regulations which governs EIS filing specifically requires Federal agencies to file EISs with EPA no earlier than the EIS is distributed to the public However this section does not
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prohibit xeroxing as a form of reproduction and distribution When an agency chooses xeroxing as the reproduction method the EIS must be clear and legible to permit ease of reading and ultimate microfiching of the EIS Where color graphs are important to the EIS they should be reproduced and circulated with the xeroxed copy
29a Responses to Comments What response must an agency provide to a comment on a draft EIS which states that the EISs methodology is inadequate or inadequately explained For example what level of detail must an agency include in its response to a simple postcard comment making such an allegation
A Appropriate responses to comments are described in Section 15034 Normally the responses should result in changes in the text of the EIS not simply a separate answer at the back of the document But in addition the agency must state what its response was and if the agency decides that no substantive response to a comment is necessary it must explain briefly why
An agency is not under an obligation to issue a lengthy reiteration of its methodology for any portion of an EIS if the only comment addressing the methodology is a simple complaint that the EIS methodology is inadequate But agencies must respond to comments however brief which are specific in their criticism of agency methodology For example if a commentor on an EIS said that an agencys air quality dispersion analysis or methodology was inadequate and the agency had included a discussion of that analysis in the EIS little if anything need be added in response to such a comment However if the commentor said that the dispersion analysis was inadequate because of its use of a certain computational technique or that a dispersion analysis was inadequately explained because computational techniques were not included or referenced then the agency would have to respond in a substantive and meaningful way to such a comment
If a number of comments are identical or very similar agencies may group the comments and prepare a single answer for each group Comments may be summarized if they are especially voluminous The comments or summaries must be attached to the EIS regardless of whether the agency believes they merit individual discussion in the body of the final EIS
29b How must an agency respond to a comment on a draft EIS that raises a new alternative not previously considered in the draft EIS
A This question might arise in several possible situations First a commentor on a draft EIS may indicate that there is a possible alternative which in the agencys view is not a reasonable alternative Section 150214(a) If that is the case the agency must explain why the comment does not warrant further agency response citing authorities or reasons that support the agencys position and if appropriate indicate those circumstances which would trigger agency reappraisal or further response Section 15034(a) For example a commentor on a draft EIS on a coal fired power plant may suggest the alternative of using synthetic fuel
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The agency may reject the alternative with a brief discussion (with authorities) of the unavailability of synthetic fuel within the time frame necessary to meet the need and purpose of the proposed facility
A second possibility is that an agency may receive a comment indicating that a particular alternative while reasonable should be modified somewhat for example to achieve certain mitigation benefits or for other reasons If the modification is reasonable the agency should include a discussion of it in the final EIS For example a commentor on a draft EIS on a proposal for a pumped storage power facility might suggest that the applicants proposed alternative should be enhanced by the addition of certain reasonable mitigation measures including the purchase and set-aside of a wildlife preserve to substitute for the tract to be destroyed by the project The modified alternative including the additional mitigation measures should be discussed by the agency in the final EIS
A third slightly different possibility is that a comment on a draft EIS will raise an alternative which is a minor variation of one of the alternatives discussed in the draft EIS but this variation was not given any consideration by the agency In such a case the agency should develop and evaluate the new alternative if it is reasonable in the final EIS If it is qualitatively within the spectrum of alternatives that were discussed in the draft a supplemental draft will not be needed For example a commentor on a draft EIS to designate a wilderness area within a National Forest might reasonably identify a specific tract of the forest and urge that it be considered for designation If the draft EIS considered designation of a range of alternative tracts which encompassed forest area of similar quality and quantity no supplemental EIS would have to be prepared The agency could fulfill its obligation by addressing that specific alternative in the final EIS
As another example an EIS on an urban housing project may analyze the alternatives of constructing 2000 4000 or 6000 units A commentor on the draft EIS might urge the consideration of constructing 5000 units utilizing a different configuration of buildings This alternative is within the spectrum of alternatives already considered and therefore could be addressed in the final EIS
A fourth possibility is that a commentor points out an alternative which is not a variation of the proposal or of any alternative discussed in the draft impact statement and is a reasonable alternative that warrants serious agency response In such a case the agency must issue a supplement to the draft EIS that discusses this new alternative For example a commentor on a draft EIS on a nuclear power plant might suggest that a reasonable alternative for meeting the projected need for power would be through peak load management and energy conservation programs If the permitting agency has failed to consider that approach in the Draft EIS and the approach cannot be dismissed by the agency as unreasonable a supplement to the Draft EIS which discusses that alternative must be prepared (If necessary the same supplement should also discuss substantial changes in the proposed action or significant new circumstances or information as required by Section 15029(c)(1) of the Councils regulations)
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If the new alternative was not raised by the commentor during scoping but could have been commentors may find that they are unpersuasive in their efforts to have their suggested alternative analyzed in detail by the agency However if the new alternative is discovered or developed later and it could not reasonably have been raised during the scoping process then the agency must address it in a supplemental draft EIS The agency is in any case ultimately responsible for preparing an adequate EIS that considers all alternatives
30 Adoption of EISs When a cooperating agency with jurisdiction by law intends to adopt a lead agencys EIS and it is not satisfied with the adequacy of the document may the cooperating agency adopt only the part of the EIS with which it is satisfied If so would a cooperating agency with jurisdiction by law have to prepare a separate EIS or EIS supplement covering the areas of disagreement with the lead agency
A Generally a cooperating agency may adopt a lead agencys EIS without recirculating it if it concludes that its NEPA requirements and its comments and suggestions have been satisfied Section 15063(a) copy) If necessary a cooperating agency may adopt only a portion of the lead agencys EIS and may reject that part of the EIS with which it disagrees stating publicly why it did so Section 15063(a)
A cooperating agency with jurisdiction by law (eg an agency with independent legal responsibilities with respect to the proposal) has an independent legal obligation to comply with NEPA Therefore if the cooperating agency determines that the EIS is wrong or inadequate it must prepare a supplement to the EIS replacing or adding any needed information and must circulate the supplement as a draft for public and agency review and comment A final supplemental EIS would be required before the agency could take action The adopted portions of the lead agency EIS should be circulated with the supplement Section 15063(b) A cooperating agency with jurisdiction by law will have to prepare its own Record of Decision for its action in which it must explain how it reached its conclusions Each agency should explain how and why its conclusions differ if that is the case from those of other agencies which issued their Records of Decision earlier
An agency that did not cooperate in preparation of an EIS may also adopt an EIS or portion thereof But this would arise only in rare instances because an agency adopting an EIS for use in its own decision normally would have been a cooperating agency If the proposed action for which the EIS was prepared is substantially the same as the proposed action of the adopting agency the EIS may be adopted as long as it is re-circulated as a final EIS and the agency announces what it is doing This would be followed by the 30-day review period and issuance of a Record of Decision by the adopting agency If the proposed action by the adopting agency is not substantially the same as that in [46 FR 18036] the EIS (ie if an EIS on one action is being adapted for use in a decision on another action) the EIS would be treated as a draft and circulated for the normal public comment period and other procedures Section 15063(b)
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31a Application of Regulations to Independent Regulatory Agencies Do the Councils NEPA regulations apply to independent regulatory agencies like the Federal Energy Regulatory Commission (FERC) and the Nuclear Regulatory Commission
A The statutory requirements of NEPAs Section 102 apply to all agencies of the federal government The NEPA regulations implement the procedural provisions of NEPA as set forth in NEPAs Section 102(2) for all agencies of the federal government The NEPA regulations apply to independent regulatory agencies however they do not direct independent regulatory agencies or other agencies to make decisions in any particular way or in a way inconsistent with an agencys statutory charter Sections 15003 15006 15071 and 15073
31b Can an Executive Branch agency like the Department of the Interior adopt an EIS prepared by an independent regulatory agency such as FERC
A If an independent regulatory agency such as FERC has prepared an EIS in connection with its approval of a proposed project an Executive Branch agency (eg the Bureau of Land Management in the Department of the Interior) may in accordance with Section 15063 adopt the EIS or a portion thereof for its use in considering the same proposal In such a case the EIS must to the satisfaction of the adopting agency meet the standards for an adequate statement under the NEPA regulations (including scope and quality of analysis of alternatives) and must satisfy the adopting agencys comments and suggestions If the independent regulatory agency fails to comply with the NEPA regulations the cooperating or adopting agency may find that it is unable to adopt the EIS thus forcing the preparation of a new EIS or EIS Supplement for the same action The NEPA regulations were made applicable to all federal agencies in order to avoid this result and to achieve uniform application and efficiency of the NEPA process
32 Supplements to Old EISs Under what circumstances do old EISs have to be supplemented before taking action on a proposal
A As a rule of thumb if the proposal has not yet been implemented or if the EIS concerns an ongoing program EISs that are more than 5 years old should be carefully reexamined to determine if the criteria in Section 15029 compel preparation of an EIS supplement
If an agency has made a substantial change in a proposed action that is relevant to environmental concerns or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts a supplemental EIS must be prepared for an old EIS so that the agency has the best possible information to make any necessary substantive changes in its decisions regarding the proposal Section 15029(c)
23
33a Referrals When must a referral of an interagency disagreement be made to the Council
A The Councils referral procedure is a pre-decision referral process for interagency disagreements Hence Section 15043 requires that a referring agency must deliver its referral to the Council not later than 25 days after publication by EPA of notice that the final EIS is available (unless the lead agency grants an extension of time under Section 15043(b))
33b May a referral be made after this issuance of a Record of Decision
A No except for cases where agencies provide an internal appeal procedure which permits simultaneous filing of the final EIS and the record of decision (ROD) Section 150610(b)(2) Otherwise as stated above the process is a pre-decision referral process Referrals must be made within 25 days after the notice of availability of the final EIS whereas the final decision (ROD) may not be made or filed until after 30 days from the notice of availability of the EIS Sections 15043(b) 150610(b) If a lead agency has granted an extension of time for another agency to take action on a referral the ROD may not be issued until the extension has expired
34a Records of Decision Must Records of Decision (RODs) be made public How should they be made available
A Under the regulations agencies must prepare a concise public record of decision which contains the elements specified in Section 15052 This public record may be integrated into any other decision record prepared by the agency or it may be separate if decision documents are not normally made public The Record of Decision is intended by the Council to be an environmental document (even though it is not explicitly mentioned in the definition of environmental document in Section 150810) Therefore it must be made available to the public through appropriate public notice as required by Section 15066(b) However there is no specific requirement for publication of the ROD itself either in the Federal Register or elsewhere
34b May the summary section in the final Environmental Impact Statement substitute for or constitute an agencys Record of Decision
A No An environmental impact statement is supposed to inform the decisionmaker before the decision is made Sections 15021 15052 The Councils regulations provide for a 30-day period after notice is published that the final EIS has been filed with EPA before the agency may take final action During that period in addition to the agencys own internal final review the public and other agencies can comment on the final EIS prior to the agencys final action on the proposal In addition the Councils regulations make clear that the requirements for the summary in an EIS are not the same as the requirements for a ROD Sections 150212 and 15052
24
34c What provisions should Records of Decision contain pertaining to mitigation and monitoring
A Lead agencies shall include appropriate conditions [including mitigation measures and monitoring and enforcement programs] in grants permits or other approvals and shall condition funding of actions on mitigation Section 15053 Any such measures that are adopted must be explained and committed in the ROD
The reasonable alternative mitigation measures and monitoring programs should have been addressed in the draft and final EIS The discussion of mitigation and monitoring in a Record of Decision must be more detailed than a general statement that mitigation is being required but not so detailed as to duplicate discussion of mitigation in the EIS The Record of Decision should contain a concise summary identification of the mitigation measures which the agency has committed itself to adopt
The Record of Decision must also state whether all practicable mitigation measures have been adopted and if not why not Section 15052(c) The Record of Decision must identify the mitigation measures and monitoring and enforcement programs that have been selected and plainly indicate that they are adopted as part of the agencys decision If the proposed action is the issuance of a permit or other approval the specific details of the mitigation measures shall then be included as appropriate conditions in whatever grants permits funding or other approvals are being made by the federal agency Section 15053 (a) (b) If the proposal is to be carried out by the [46 FR 18037] federal agency itself the Record of Decision should delineate the mitigation and monitoring measures in sufficient detail to constitute an enforceable commitment or incorporate by reference the portions of the EIS that do so
34d What is the enforceability of a Record of Decision
A Pursuant to generally recognized principles of federal administrative law agencies will be held accountable for preparing Records of Decision that conform to the decisions actually made and for carrying out the actions set forth in the Records of Decision This is based on the principle that an agency must comply with its own decisions and regulations once they are adopted Thus the terms of a Record of Decision are enforceable by agencies and private parties A Record of Decision can be used to compel compliance with or execution of the mitigation measures identified therein
35 Time Required for the NEPA Process How long should the NEPA process take to complete
A When an EIS is required the process obviously will take longer than when an EA is the only document prepared But the Councils NEPA regulations encourage streamlined review adoption of deadlines elimination of duplicative work eliciting suggested alternatives and other comments early through scoping cooperation among agencies and consultation with applicants during project planning The Council has advised agencies that under the new NEPA regulations even large complex energy projects would require only about 12 months
25
for the completion of the entire EIS process For most major actions this period is well within the planning time that is needed in any event apart from NEPA
The time required for the preparation of program EISs may be greater The Council also recognizes that some projects will entail difficult long-term planning andor the acquisition of certain data which of necessity will require more time for the preparation of the EIS Indeed some proposals should be given more time for the thoughtful preparation of an EIS and development of a decision which fulfills NEPAs substantive goals
For cases in which only an environmental assessment will be prepared the NEPA process should take no more than 3 months and in many cases substantially less as part of the normal analysis and approval process for the action
36a Environmental Assessments (EA) How long and detailed must an environmental assessment (EA) be
A The environmental assessment is a concise public document which has three defined functions (1) It briefly provides sufficient evidence and analysis for determining whether to prepare an EIS (2) it aids an agencys compliance with NEPA when no EIS is necessary ie it helps to identify better alternatives and mitigation measures and (3) it facilitates preparation of an EIS when one is necessary Section 15089(a)
Since the EA is a concise document it should not contain long descriptions or detailed data which the agency may have gathered Rather it should contain a brief discussion of the need for the proposal alternatives to the proposal the environmental impacts of the proposed action and alternatives and a list of agencies and persons consulted Section 15089(b)
While the regulations do not contain page limits for EAs the Council has generally advised agencies to keep the length of EAs to not more than approximately 10-15 pages Some agencies expressly provide page guidelines (eg 10-15 pages in the case of the Army Corps) To avoid undue length the EA may incorporate by reference background data to support its concise discussion of the proposal and relevant issues
36b Under what circumstances is a lengthy EA appropriate
A Agencies should avoid preparing lengthy EAs except in unusual cases where a proposal is so complex that a concise document cannot meet the goals of Section 15089 and where it is extremely difficult to determine whether the proposal could have significant environmental effects In most cases however a lengthy EA indicates that an EIS is needed
37a Findings of No Significant Impact (FONSI) What is the level of detail of information that must be included in a finding of no significant impact (FONSI)
26
A The FONSI is a document in which the agency briefly explains the reasons why an action will not have a significant effect on the human environment and therefore why an EIS will not be prepared Section 150813 The finding itself need not be detailed but must succinctly state the reasons for deciding that the action will have no significant environmental effects and if relevant must show which factors were weighted most heavily in the determination In addition to this statement the FONSI must include summarize or attach and incorporate by reference the environmental assessment
37b What are the criteria for deciding whether a FONSI should be made available for public review for 30 days before the agencys final determination whether to prepare an EIS
A Public review is necessary for example (a) if the proposal is a borderline case ie when there is a reasonable argument for preparation of an EIS (b) if it is an unusual case a new kind of action or a precedent setting case such as a first intrusion of even a minor development into a pristine area copy) when there is either scientific or public controversy over the proposal or (d) when it involves a proposal which is or is closely similar to one which normally requires preparation of an EIS Sections 15014(e)(2) 150827 Agencies also must allow a period of public review of the FONSI if the proposed action would be located in a floodplain or wetland EO 11988 Sec 2(a)(4) EO 11990 Sec 2(b)
38 Public Availability of EAs v FONSIs Must (EAs) and FONSIs be made public If so how should this be done
A Yes they must be available to the public Section 15066 requires agencies to involve the public in implementing their NEPA procedures and this includes public involvement in the preparation of EAs and FONSIs These are public environmental documents under Section 15066(b) and therefore agencies must give public notice of their availability A combination of methods may be used to give notice and the methods should be tailored to the needs of particular cases Thus a Federal Register notice of availability of the documents coupled with notices in national publications and mailed to interested national groups might be appropriate for proposals that are national in scope Local newspaper notices may be more appropriate for regional or site-specific proposals
The objective however is to notify all interested or affected parties If this is not being achieved then the methods should be reevaluated and changed Repeated failure to reach the interested or affected public would be interpreted as a violation of the regulations
39 Mitigation Measures Imposed in EAs and FONSIs Can an EA and FONSI be used to impose enforceable mitigation measures monitoring programs or other requirements even though there is no requirement in the regulations in such cases for a formal Record of Decision
A Yes In cases where an environmental assessment is the appropriate environmental document there still may be mitigation measures or alternatives that would be desirable to consider and adopt even though the impacts of the proposal will not be significant In such
27
cases the EA should include a discussion of these measures or alternatives to assist [46 FR 18038] agency planning and decisionmaking and to aid an agencys compliance with [NEPA] when no environmental impact statement is necessary Section 15013(b) 15089(a)(2) The appropriate mitigation measures can be imposed as enforceable permit conditions or adopted as part of the agency final decision in the same manner mitigation measures are adopted in the formal Record of Decision that is required in EIS cases
40 Propriety of Issuing EA When Mitigation Reduces Impacts If an environmental assessment indicates that the environmental effects of a proposal are significant but that with mitigation those effects may be reduced to less than significant levels may the agency make a finding of no significant impact rather than prepare an EIS Is that a legitimate function of an EA and scoping
[NB Courts have disagreed with CEQs position in Question 40 The 1987-88 CEQ Annual Report stated that CEQ intended to issue additional guidance on this topic Ed note]
A Mitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation or submitted by an applicant or agency as part of the original proposal As a general rule the regulations contemplate that agencies should use a broad approach in defining significance and should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement Sections 15088 150827
If a proposal appears to have adverse effects which would be significant and certain mitigation measures are then developed during the scoping or EA stages the existence of such possible mitigation does not obviate the need for an EIS Therefore if scoping or the EA identifies certain mitigation possibilities without altering the nature of the overall proposal itself the agency should continue the EIS process and submit the proposal and the potential mitigation for public and agency review and comment This is essential to ensure that the final decision is based on all the relevant factors and that the full NEPA process will result in enforceable mitigation measures through the Record of Decision
In some instances where the proposal itself so integrates mitigation from the beginning that it is impossible to define the proposal without including the mitigation the agency may then rely on the mitigation measures in determining that the overall effects would not be significant (eg where an application for a permit for a small hydro dam is based on a binding commitment to build fish ladders to permit adequate down stream flow and to replace any lost wetlands wildlife habitat and recreational potential) In those instances agencies should make the FONSI and EA available for 30 days of public comment before taking action Section 15014(e)(2)
Similarly scoping may result in a redefinition of the entire project as a result of mitigation proposals In that case the agency may alter its previous decision to do an EIS as long as the agency or applicant resubmits the entire proposal and the EA and FONSI are available for 30 days of review and comment One example of this would be where the size and location of a proposed industrial park are changed to avoid affecting a nearby wetland area
28
ENDNOTES
The first endnote appeared in the original Federal Register The other endnotes are for information only
1 References throughout the document are to the Council on Environmental Qualitys Regulations For Implementing The Procedural Provisions of the National Environmental Policy Act 40 CFR Parts 1500-1508
2 [46 FR 18027] indicates that the subsequent text may be cited to 48 Fed Reg 18027 (1981) Ed Note
3 Q20 Worst Case Analysis was withdrawn by final rule issued at 51 Fed Reg 15618 (Apr 25 1986) textual errors corrected 51 FR p 16846 (May 7 1986) The preamble to this rule is published at ELR Admin Mat 35055
29
APPENDIX 18
n Guidance Under the
National Environmental Policy Act
Front cover photograph of John Heinz National Wildlife Refuge at Tinicum by John and Karen Hollingsworth
Front cover photograph of school bus and children by Sam Kittner
ENVIRONMENTAL JUSTICE
Guidance Under the
National Environmental Policy Act
Council on Environmental Quality
Executive Office of the President
Old Executive Office Building Room 360 Washington DC 20502
(202)395-5750 httpwwwwhitehousegovCEQ
December 10 1997
Table of Contents
I Introduction 1
II Executive Order 12898 and the Presidential Memorandum 3
III Executive Order 12898 and NEPA 7
A NEPA Generally 7
B Principles for Considering Environmental Justice under NEPA 8 1 General Principles 8
2 Additional Considerations 9
C Considering Environmental Justice in Specific Phases of the NEPA Process 10
1 Scoping 10
2 Public Participation 13
3 Determining the Affected Environment 14
4 Analysis 14 5 Alternatives 15 6 Record of Decision 15
7 Mitigation 16
D Where No EIS or EA is Prepared 16
IV Regulatory Changes 19
V Effect of this Guidance 21
Appendix Guidance for Agencies on Key Terms in Executive Order 12898 23
I
Introduction
Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations 1 provides that each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing as appropriate disproportionately high and adverse human health or environmental effects of its programs policies and activities on minority populations and low-income populations The Executive Order makes clear that its provisions appiy fully to programs invoiving Native Americans
In the memorandum to heads of departments and agencies that accompanied Executive Order 12898 the President specifically recognized the importance of procedures under the National Environmental Policy Act (NEPA)2 for identifying and addressing environmental justice concerns The memorandum states that each Federal agency shall analyze the environmental effects including human health economic and social effects of Federal actions including effects on minority communities and low-income communities when such analysis is required by [NEPA] The memorandum particularly emphasizes the importance of NEPAs public participation process directing that each Federal agency shall provide opportunities for community input in the NEPA process Agencies are further directed to identify potential effects and mitigation measures in consultation with affected communities and improve the accessibility of meetings crucial documents and notices
The Council on Environmental Quality (CEQ) has oversight of the Federal governments compliance with Executive Order 12898 and NEPA 3 CEQ in consultation with EPA and other affected agencies has developed this guidance to further assist Federal agencies with their NEPA procedures so that environmental justice concerns are effectively identified and addressed To the extent practicable and permitted by law agencies may supplement this guidance with more specific procedures tailored to particular programs or activities of an individual department agency or office
1 59 Fed Reg 7629 (1994)
42 USC sect4321 ~ ~
3 Cenain oversight functions in the Executive Order are delegated to the Deputy Assistant to the President for Environmental Policy Following the merger of the White House Office on Environmental Policy with CEQ the Chair of CEQ assumed those functions The Environmental Protection Agency (EPA) has lead responsibility for implementation of the Executive Order as Chair of the Interagency Working Group (IWG) on Environmental Justice
1
II
Executive Order 12898 and the Presidential Memorandum
In addition to the general directive in Executive Order 12898 that each agency identify and address as appropriate disproportionately high and adverse human health or environmental effects of its programs policies and activities on minority populations and low-income populations 4 there are several provisions of the Executive Order and a number of supporting documents to which agencies should refer when identifying and addressing environmental justice concerns in the NEPA process
First the Executive Order itself contains particular emphasis on four issues that are pertinent to the NEPA process
bull The Executive Order requires the development of agency-specific environmental justice strategies 5 Thus agencies have developed and should periodically revise their strategies providing guidance concerning the types of programs policies and activities that may or historically have raised environmental justice concerns at the particular agency These guidances may suggest possible approaches to addressing such concerns in the agencys NEPA analyses as appropriate
bull The Executive Order recognizes the importance of research data collection and analysis particularly with respect to multiple and cumulative exposures to environmental hazards for low-income populations minority populations and Indian tribes 6 Thus data on these exposure issues should be incorporated into NEPA analyses as appropriate 7
bull The Executive Order provides for agencies to collect maintain and analyze information on patterns of subsistence consumption of fish vegetation or wildlife 8
Where an agency action may affect fish vegetation or wildlife that agency action may
4 Executive Order No 12898 59 Fed Reg at 7630 (Section 1-101)
5 Id at 7630 (Section 1-103)
6 Id at 7631 (Section 3-3)
7 For further information on considering cumulative effects see Considering Cumulative Effects Under The National Environmental Policy Act (Council on Environmental Quality Executive Office of the President Jan 1997)
8 Id at 7631 (Section 4-401)
also affect subsistence patterns of consumption and indicate the potential for disproportionately high and adverse human health or environmental effects on low-income populations minority populations and Indian tribes
bull The Executive Order requires agencies to work to ensure effective public participation and access to information 9 Thus within its NEPA process and through other appropriate mechanisms each Federal agency shall wherever practicable and appropriate translate crucial public documents notices and hearings relating to human health or the environment for limited English speaking populations In addition each agency should work to ensure that public documents notices and hearings relating to human health or the environment are concise understandable and readily accessible to the public 10
Second the memorandum accompanying the Executive Order identifies four important ways to consider environmental justice under NEPA
bull Each Federal agency should analyze the environmental effects including human health economic and social effects of Federal actions including effects on minority populations low-income populations and Indian tribes when such analysis is required by NEPA 11
bull Mitigation measures identified as part of an environmental assessment (EA) a finding of no significant impact (FONSI) an environmental impact statement (EIS) or a record of decision (ROD) should whenever feasible address significant and adverse environmental effects of proposed federal actions on minority populations low-income populations and Indian tribes 12
bull Each Federal agency must provide opportunities for effective community participation in the NEPA process including identifying potential effects and mitigation measures in consultation with affected communities and improving the accessibility of public meetings crucial documents and notices 13
bull Review of NEPA compliance (such as EPAs review undersect 309 of the Clean Air Act)
9 Id at 7632 (Section 5-5)
10 Id at 7632 (Section 5-5)
11 Memorandum from the President to the Heads of Departments and Agencies Comprehensive Presidential Documents No 279 (Feb 11 1994)
12 Id
13 Id
must ensure that the lead agency preparing NEPA analyses and documentation has appropriately analyzed environmental effects on minority populations low-income populations or Indian tribes including human health social and economic effects 14
Third the Interagency Working Group (IWG) established by the Executive Order to implement the orders requirements has developed guidance on key terms in the Executive Order The guidance reproduced as Appendix A reflects a general consensus based on Federal agencies experience and understanding of the issues presented Agencies should apply the guidance with flexibility and may consider its terms a point of departure rather than conclusive direction in applying the terms of the Executive Order
14 Id
III
Executive Order 12898 and NEPA
A NEPA Generally
NEPAs fundamental policy is to encourage productive and enjoyable harmony between man and his environment 15 In the statute Congiess recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment 16 The following goals set forth in NEPA make clear that attainment of environmental justice is wholly consistent with the purposes and policies of NEPA17
bull to assure for all Americans safe healthful productive and aesthetically and culturally pleasing surroundings 18
bull to attain the widest range of beneficial uses of the environment without degradation risk to health or safety or other undesirable and unintended consequences 19
bull to preserve important historic cultural and natural aspects of our natural heritage and maintain wherever possible an environment which supports diversity and variety of individual choice 20
and
bull to achieve a balance between population and resource use which will permit high standards of living and a wide sharing of lifes amenities 21
These goals are promoted through the requirement that all agencies of the Federal government shall include in every recommendation or report on proposals for legislation and other
15 42 USC sect 4321
16 42 USC sect 4331(c)
17 42 USC sect 4331(b)
18 42 usc sect 4331(b)(2)
19 42 USC sect 4331(b)(3)
20 42 USC sect 4331(b)(4)
21 42 usc sect 4331(b)(5)
1
major Federal actions significantly affecting the quality of the human environment a detailed statement by the responsible official on the environmental impacts of the proposed action adverse environmental effects that cannot be avoided should the proposal be implemented alternatives to the proposed action the relationship between local short-term uses of mans environment and long-term productivity and any irreversible or irretrievable commitments of resources involved in the proposed action itself 22
Preparation of an EA may precede preparation of an EIS to determine whether a proposed action may significantly affect the quality of the human environment The EA either will support a finding of no significant impact (FONSI) or will document the need for an EIS Agency procedure at each step of this process should be guided by the agencys own NEPA regulations and by the CEQ regulations found at 40 CFR Parts 1500-1508
B Principles for Considering Environmental Justice under NEPA
Environmental justice issues may arise at any step of the NEPA process and agencies should consider these issues at each and every step of the process as appropriate Environmental justice issues encompass a broad range of impacts covered by NEPA including impacts on the natural or physical environment and interrelated social cultural and economic effects 23 In preparing an EIS or an EA agencies must consider both impacts on the natural or physical environment and related social cultural and economic impacts24 Environmental justice concerns may arise from impacts on the natural and physical environment such as human health or ecological impacts on minority populations low-income populations and Indian tribes or from related social or economic impacts
1 General Principles
Agencies should recognize that the question of whether agency action raises environmental justice issues is highly sensitive to the history or circumstances of a particular community or population the particular type of environmental or human health impact and the nature of the proposed action itself There is not a standard formula for how environmental justice issues should be identified or addressed However the following six principles provide general guidance
22 42 USC sect 4332(c)
23 The CEQ implementing regulations define effects or impacts to include ecologicalaesthetic historic cultural economic social or health whether direct indirect or cumulative 40 CFR 1508 8
24 40 CFR 150814
bull Agencies should consider the composition of the affected area to determine whether minority populations low-income populations or Indian tribes are present in the area affected by the proposed action and if so whether there may be disproportionately high and adverse human health or environmental effects on minority populations low-income populations or Indian tribes
bull Agencies should consider relevant public health data and industry data concerning the potential for multiple or cumulative exposure to human health or environmental hazards in the affected population and historical patterns of exposure to environmental hazards to the extent such information is reasonably available For example data may suggest there are disproportionately high and adverse human health or environmental effects on a minority population low-income population or Indian tribe from the agency action Agencies should consider these multiple or cumulative effects even if certain effects are not within the control or subject to the discretion of the agency proposing the action
bull Agencies should recognize the interrelated cultural social occupational historical or economic factors that may amplify the natural and physical environmental effects of the proposed agency action These factors should include the physical sensitivity of the community or population to particular impacts the effect of any disruption on the community structure associated with the proposed action and the nature and degree of impact on the physical and social structure of the community
bull Agencies should develop effective public participation strategies Agencies should as appropriate acknowledge and seek to overcome linguistic cultural institutional geographic and other barriers to meaningful participation and should incorporate active outreach to affected groups
bull Agencies should assure meaningful community representation in the process Agencies should be aware of the diverse constituencies within any particular community when they seek community representation and should endeavor to have complete representation of the community as a whole Agencies also should be aware that community participation must occur as early as possible if it is to be meaningful
bull Agencies should seek tribal representation in the process in a manner that is consistent with the government-to-government relationship between the United States and tribal governments the federal governments trust responsibility to federally-recognized tribes and any treaty rights
2 Additional Considerations
The preceding principles must be applied in light of these further considerations that are
2
pertinent to any analysis of environmental justice under NEPA
bull The Executive Order does not change the prevailing legal thresholds and statutory interpretations under NEPA and existing case law For example for an EIS to be required there must be a sufficient impact on the physical or natural environment to be significant within the meaning of NEPA Agency consideration of impacts on lowshyincome populations minority populations or Indian tribes may lead to the identification of disproportionately high and adverse human health or environmental effects that are significant and that otherwise would be overlooked 25
bull Under NEPA the identification of a disproportionately high and adverse human health or environmental effect on a low-income population minority population or Indian tribe does not preclude a proposed agency action from going forward nor does it necessarily compel a conclusion that a proposed action is environmentally unsatisfactory Rather the identification of such an effect should heighten agency attention to alternatives (including alternative sites) mitigation strategies monitoring needs and preferences expressed by the affected community or population
bull Neither the Executive Order nor this guidance prescribes any specific format for examining environmental justice such as designating a specific chapter or section in an EIS or EA on environmental justice issues Agencies should integrate analyses of environmental justice concerns in an appropriate manner so as to be clear concise and comprehensible within the general format suggested by 40 CFR sect 150210
C Considering Environmental Justice in Specific Phases of the NEPA Process
While appropriate consideration of environmental justice issues is highly dependent upon the particular facts and circumstances of the proposed action the affected environment and the affected populations there are opportunities and strategies that are useful at particular stages of the NEPA process
1 Scoping
During the scoping process an agency should preliminarily determine whether
25 Title VI of the Civil Rights Act of 1964 U SC 2000d et seq and agency implementing regulations
prohibit recipients of federal financial assistance from talcing actions that discriminate on the basis of race sex color national origin or religion If an agency is aware that a recipient of federal funds may be taking action that is causing a racially discriminatory impact the agency should consider using Title VI as a means to prevent or eliminate that discrimination
an area potentially affected by a proposed agency action may include low-income populations minority populations or Indian tribes and seek input accordingly When the scoping process is used to develop an EIS or EA an agency should seek input from low income populations minority populations or Indian tribes as early in the process as information becomes available 26 Any such determination as well as the basis for the determination should be more substantively addressed in the appropriate NEPA documents and communicated as appropriate during the NEPA process
If an agency identifies any potentially affected minority populations low-income populations or Indian tribes the agency should develop a strategy for effective public involvement in the agencys determination of the scope of the NEPA analysis Customary agency practices for notifying the public of a proposed action and subsequent scoping and public events may be enhanced through better use of local resources community and other nongovernmental organizations and locally targeted media
Agencies should consider enhancing their outreach through the following means
bull Religious organizations (eg bull Rural cooperatives churches temples ministerial associations) bull Business and trade organizations
bull Newspapers radio and other media bull Community and social service particularly media targeted to lowshy organizations income populations minority populations or Indian tribes bull Universities colleges vocational and
other schools bull Civic associations
bull Labor organizations bull Minority business associations
bull Civil rights organizations bull Environmental and environmental
justice organizations bull Local schools and libraries
bull Legal aid providers bull Senior citizens groups
bull Homeowners tenants and bull Public health agencies and clinics neighborhood watch groups and
bull Federal state local and tribal bull The Internet and other electronic governments media
26 For more information on scoping see Memorandum from Nicolas C Yost Scoping Guidance (Council on Environmental Quality Executive Office of the President April 30 1981)
11
The participation of diverse groups in the scoping process is necessary for full consideration of the potential environmental impacts of a proposed agency action and any alternatives By discussing and informing the public of the emerging issues related to the proposed action agencies may reduce misunderstandings build cooperative working relationships educate the public and decisionmakers and avoid potential conflicts Agencies should recognize that the identity of the relevant public may evolve during the process and may include different constituencies or groups of individuals at different stages of the NEPA process This may also be the appropriate juncture to begin government-toshygovernment consultation with affected Indian tribes and to seek their participation as cooperating agencies For this participation to be meaningful the public should have access to enough information so that it is well informed and can provide constructive input
The following information may help inform the public during the scoping process
bull A description of the proposed action
bull An outline of the anticipated schedule for completing the NEPA process with key milestones
bull An initial list of alternatives (including alternative sites if possible) and potential impacts
bull An initial list of other existing or proposed actions Federal and non-Federal that may have cumulative impacts
bull Maps drawings and any other appropriate material or references
bull An agency point of contact
bull Timely notice of locations where comments will be received or public meetings held
bull Any telephone number or locations where further information can be obtained
bull Examples of past public comments on similar agency actions
Thorough scoping is the foundation for the analytical process and provides an early opportunity for the public to participate in the design of alternatives for achieving the goals and objectives of the proposed agency action
12