Summary of NEPA and SEPA Coastal Engineering and Land Use Issues in North Carolina Greenville, NC January 13, 2009 Sean M. Sullivan.

Summary of NEPA and SEPASummary of NEPA and SEPACoastal Engineering and Land Use Issues in Coastal Engineering and Land Use Issues in

North CarolinaNorth Carolina

Greenville, NCGreenville, NC

January 13, 2009January 13, 2009

Sean M. SullivanSean M. Sullivan

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

Summary of the ActsSummary of the Acts

» National Environmental Policy ActNational Environmental Policy Act› 42 U.S.C. § 4321, 42 U.S.C. § 4321, et seqet seq..› PurposePurpose – Ensure that federal – Ensure that federal

agencies investigate and consider agencies investigate and consider the environmental consequences of the environmental consequences of their actions.their actions.

› Environmental Impact Statement Environmental Impact Statement (“EIS”).(“EIS”).

Summary of the Acts Summary of the Acts (cont’d)(cont’d)

» North Carolina Environmental North Carolina Environmental Policy Act (“SEPA”).Policy Act (“SEPA”).

› N.C.G.S. § 113A-1, N.C.G.S. § 113A-1, et seqet seq. . › PurposePurpose – Require state – Require state

agencies to consider and report agencies to consider and report on the environmental on the environmental consequences of their actions. consequences of their actions.

Summary of the Acts Summary of the Acts (cont’d)(cont’d)

» Both statutes are procedural in Both statutes are procedural in nature.nature.› They force federal and state They force federal and state

agencies to evaluate and consider agencies to evaluate and consider the effects of their actions.the effects of their actions.

› Neither statute requires an agency Neither statute requires an agency to alter its plans based on the to alter its plans based on the results of the analysis.results of the analysis.

Summary of the Acts Summary of the Acts (cont’d)(cont’d)

» Implementing RegulationsImplementing Regulations – for – for both NEPA and SEPA, individual both NEPA and SEPA, individual agencies have their own agencies have their own procedural regulations in addition procedural regulations in addition to the general regulations.to the general regulations.

» Compliance with NEPA will satisfy Compliance with NEPA will satisfy SEPA as well.SEPA as well.

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

ApplicabilityApplicability» NEPANEPA – a – a federalfederal agency must prepare agency must prepare

an EIS for any:an EIS for any:› ““Major federal action significantly Major federal action significantly

affecting the quality of the human affecting the quality of the human environment.” (MFASAQHE).environment.” (MFASAQHE).

› Can apply toCan apply to::› Internal policy decisionsInternal policy decisions› RulemakingsRulemakings› Permitting DecisionsPermitting Decisions

Applicability (cont’d)Applicability (cont’d)» Determining whether NEPA AppliesDetermining whether NEPA Applies

› RuleRule – if the effects of an action will not rise to – if the effects of an action will not rise to the level of a MFASAQHE, an EIS is not required.the level of a MFASAQHE, an EIS is not required.

› ProcedureProcedure › Some actions are designated as requiring an EIS by Some actions are designated as requiring an EIS by

regulation; orregulation; or› An agency can perform an Environmental Assessment An agency can perform an Environmental Assessment

(“EA”) to determine if an EIS is necessary; or(“EA”) to determine if an EIS is necessary; or› An agency can establish Categorical Exemptions from An agency can establish Categorical Exemptions from

NEPA for certain actions.NEPA for certain actions.

Applicability (cont’d)Applicability (cont’d)

» Three Criteria for SEPA to Apply:Three Criteria for SEPA to Apply:› State Actions;State Actions;› That will significantly affect the That will significantly affect the

quality of the human environment; quality of the human environment; andand

› Involve eitherInvolve either::› Expenditures of public money; orExpenditures of public money; or› Use of State LandUse of State Land

Applicability (cont’d)Applicability (cont’d)

» Determining whether SEPA AppliesDetermining whether SEPA Applies› Same basic format as for NEPASame basic format as for NEPA› SEPA has Minimum Criteria rather SEPA has Minimum Criteria rather

than Categorical Exemptions.than Categorical Exemptions.› Minimum CriteriaMinimum Criteria

› In order for an action to be exempt, it In order for an action to be exempt, it must satisfy both:must satisfy both:

› General minimum criteria; andGeneral minimum criteria; and› Specific minimum criteria.Specific minimum criteria.

Applicability (cont’d)Applicability (cont’d)

» When in doubt, do an EA.When in doubt, do an EA.› For NEPA and SEPA.For NEPA and SEPA.› GoalGoal - Determine whether to - Determine whether to

prepare an EIS.prepare an EIS.› An EA analyzes the environmental An EA analyzes the environmental

effects of a project, but the effects of a project, but the question is the question is the extentextent of the of the effects.effects.

Applicability (cont’d)Applicability (cont’d)

» Effects to consider in the EAEffects to consider in the EA::› Direct effectsDirect effects – immediate – immediate

consequences of the proposed action.consequences of the proposed action.› Indirect effectsIndirect effects – reasonably – reasonably

foreseeable effects of the proposed foreseeable effects of the proposed action.action.

› Cumulative effectsCumulative effects – effect of the – effect of the proposed action when combined with proposed action when combined with other existing or planned actions.other existing or planned actions.

Applicability (cont’d)Applicability (cont’d)

» Two Choices Based on Result Two Choices Based on Result of EAof EA::› Finding of No Significant Impact Finding of No Significant Impact

(“FONSI”).(“FONSI”).› No EIS requiredNo EIS required..

› Proposed action requires an EIS.Proposed action requires an EIS.

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

What’s RequiredWhat’s Required

» The lawyer’s answer – It The lawyer’s answer – It depends.depends.

» Two basic paradigmsTwo basic paradigms::› If NEPA applies to the proposed If NEPA applies to the proposed

action, follow the NEPA Paradigm.action, follow the NEPA Paradigm.› If NEPA does not apply to the If NEPA does not apply to the

proposed action, but SEPA does, proposed action, but SEPA does, follow the SEPA Paradigm.follow the SEPA Paradigm.

What’s Required What’s Required (cont’d)(cont’d)

» The NEPA ParadigmThe NEPA Paradigm› Recall that if both NEPA and SEPA apply Recall that if both NEPA and SEPA apply

to an action, compliance with NEPA will to an action, compliance with NEPA will satisfy SEPA as well.satisfy SEPA as well.› CaveatCaveat – If SEPA applies, you must submit – If SEPA applies, you must submit

your NEPA documents for distribution your NEPA documents for distribution through the NC clearinghouse process.through the NC clearinghouse process.

› Consult the agency’s regulations to Consult the agency’s regulations to determine how to proceed (EIS, EA, or determine how to proceed (EIS, EA, or Categorical Exemption).Categorical Exemption).

What’s Required What’s Required (cont’d)(cont’d)

» The SEPA ParadigmThe SEPA Paradigm› State agencies typically prepare an State agencies typically prepare an

EA before doing an EIS.EA before doing an EIS.› But, they have discretion to proceed But, they have discretion to proceed

directly to an EIS.directly to an EIS.

› State agencies document their State agencies document their review of the EA and/or EIS and their review of the EA and/or EIS and their ultimate decision in a Record of ultimate decision in a Record of Decision (“ROD”).Decision (“ROD”).

What’s Required What’s Required (cont’d)(cont’d)

» The Mitigation ConceptThe Mitigation Concept› The proponent can mitigate the effects The proponent can mitigate the effects

of a project to the point that an EIS is of a project to the point that an EIS is not required and a FONSI is not required and a FONSI is appropriate.appropriate.

› Mitigation steps must be legally Mitigation steps must be legally binding.binding.› Example – incorporation of mitigation Example – incorporation of mitigation requirements into a final permit.requirements into a final permit.

What’s Required What’s Required (cont’d)(cont’d)

» The Mitigation Concept (cont’d)The Mitigation Concept (cont’d)› Examples of MitigationExamples of Mitigation

› Refraining from certain actions Refraining from certain actions to limit the effects of a project.to limit the effects of a project.

› Repairing or rehabilitating the Repairing or rehabilitating the environment.environment.

› Compensating for the effects Compensating for the effects through other actions.through other actions.

What’s Required What’s Required (cont’d)(cont’d)

» Required Content of the EISRequired Content of the EIS› Purpose and need for the project;Purpose and need for the project;› Description of the affected Description of the affected

environment;environment;› Effects of the project (direct, Effects of the project (direct,

indirect, cumulative); andindirect, cumulative); and› Alternatives analysis (including no Alternatives analysis (including no

action).action).

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

The ProcessThe Process

» NEPA ProceduresNEPA Procedures› For NEPA, the level of public interest For NEPA, the level of public interest

in a project can affect the process.in a project can affect the process.› Some public notices are mandatory Some public notices are mandatory

and some are discretionary.and some are discretionary.› EA/FONSI – Public notice is EA/FONSI – Public notice is

discretionary.discretionary.

The Process (cont’d)The Process (cont’d)» NEPA Procedures (cont’d)NEPA Procedures (cont’d)

› For an EIS, public notice and comment on the For an EIS, public notice and comment on the draft EIS is mandatory.draft EIS is mandatory.

› Timing ConstraintsTiming Constraints› Comment period on draft EIS must be at least 45 Comment period on draft EIS must be at least 45

days.days.› No final decision until at least 90 days have passed No final decision until at least 90 days have passed

since publication of the notice of availability since publication of the notice of availability regarding the draft EIS.regarding the draft EIS.

› Notice of availability for final EIS must be published Notice of availability for final EIS must be published at least 30 days prior to agency’s final decision. at least 30 days prior to agency’s final decision.

The Process (cont’d)The Process (cont’d)

» NEPA Procedures (cont’d)NEPA Procedures (cont’d)› Judicial ReviewJudicial Review

› Done as part of judicial review of overall Done as part of judicial review of overall agency action.agency action.

› StandardStandard – courts apply deferential – courts apply deferential “arbitrary and capricious” standard of “arbitrary and capricious” standard of review.review.› CaveatCaveat – courts must ensure that the – courts must ensure that the

agency took a “hard look” at the agency took a “hard look” at the consequences of the proposed project. consequences of the proposed project.

The Process (cont’d)The Process (cont’d)

» NEPA Procedures (cont’d)NEPA Procedures (cont’d)› SEPA Clearinghouse Requirements SEPA Clearinghouse Requirements

› If SEPA applies to your project as If SEPA applies to your project as well as NEPA, you must distribute well as NEPA, you must distribute the NEPA documents through the the NEPA documents through the clearinghouse process.clearinghouse process.

The Process (cont’d)The Process (cont’d)» SEPA ProceduresSEPA Procedures

› NC Department of Administration NC Department of Administration Clearinghouse ProceduresClearinghouse Procedures› EAs, FONSIs, draft EISs and final EISs EAs, FONSIs, draft EISs and final EISs

must be distributed through this must be distributed through this procedure.procedure.

› Affords other state agencies the Affords other state agencies the opportunity to comment.opportunity to comment.

› Initiates a public comment period as well.Initiates a public comment period as well.

The Process (cont’d)The Process (cont’d)

» SEPA Procedures (cont’d)SEPA Procedures (cont’d)› Judicial ReviewJudicial Review

› Compliance with SEPA is reviewed Compliance with SEPA is reviewed during review of overall agency action.during review of overall agency action.

› StandardStandard – courts apply deferential – courts apply deferential “arbitrary and capricious” standard of “arbitrary and capricious” standard of review.review.

› First step is to file a contested case with First step is to file a contested case with the Office of Administrative Hearings.the Office of Administrative Hearings.

OverviewOverview

» Summary of the ActsSummary of the Acts» ApplicabilityApplicability» What’s RequiredWhat’s Required» The ProcessThe Process» Practical ConsiderationsPractical Considerations

Practical ConsiderationsPractical Considerations» Scoping – Purpose and NeedScoping – Purpose and Need

› The questions you ask determine the answers The questions you ask determine the answers that you get.that you get.

» Other Consultation Statutes May ApplyOther Consultation Statutes May Apply› National Historic Preservation ActNational Historic Preservation Act

› Can incorporate into NEPA review.Can incorporate into NEPA review.

› Endangered Species ActEndangered Species Act› May need consultations with US Fish and Wildlife May need consultations with US Fish and Wildlife

Service.Service.› May affect availability of categorical exemptions.May affect availability of categorical exemptions.

Practical Considerations Practical Considerations (cont’d)(cont’d)

» Dot your “I’s” and cross your “T’s”Dot your “I’s” and cross your “T’s”› NEPA compliance is a favorite for NEPA compliance is a favorite for

environmental groups opposed to a environmental groups opposed to a project.project.

› Ultimately, the statutes are Ultimately, the statutes are procedural and compliance is within procedural and compliance is within your control.your control.

Contact InformationContact Information

Sean M. SullivanSean M. Sullivan

Williams MullenWilliams Mullen

3200 Beechleaf Court, Suite 5003200 Beechleaf Court, Suite 500

Raleigh, NC 27604Raleigh, NC 27604

(919) 981-4312(919) 981-4312

[email protected]@williamsmullen.com

www.williamsmullen.comwww.williamsmullen.com