TEST 335 – Environmental Impact Analysis NEPA Overview January 3, 2011

TEST 335 – Environmental Impact AnalysisNEPA Overview January 3, 2011

What is NEPA? • National Environmental Policy Act of 1969, 42 United States Code § 4321 et seq. • Signed into law January 1, 1970 • Legislation initiated in response to sentiment that federal agencies should take lead in environmental protection. • Established a national policy promoting the enhancement of the environment.

Growing environmental awareness in 1960s Record numbers of fish kills Cuyahoga River caught fire Concern with Federal Government actions Torrey Canyon Oil Spill Proposal for dam that would flood Grand Canyon – Famous ads in NY Times and Washington Post First Earth Day in 1970 Why was NEPA enacted?

Three Key Sections of NEPA • Declaration of national environmental policies and goals. • Action-forcing provisions for federal agencies to enforce policies and goals. • Establishment of a Council on Environmental Quality (CEQ) in the Executive Office of the President.

NEPA’s Statutory Purposes • Declare a national policy to encourage productive and enjoyable harmony between man and his environment • prevent or eliminate damage to the environment • stimulate the health and welfare of humans • enrich our understanding of natural resources important to the nation

NEPA’s Statutory Purposes • Use all practical means and measures to • foster and promote the general welfare • create and maintain conditions under which humans and nature exist in productive harmony • fulfill social, economic, and other requirements of present and future generations of Americans

NEPA’s Objectives • Supplemental legal authority • Procedural reform • Disclosure of environmental information • Resolution of environmental problems • Foster intergovernmental coordination and cooperation • Enhance public participation in governmental planning and decisionmaking

Federal Agency Responsibilities • Trustees of the environment • Assure safe, healthful, productive, esthetically and culturally pleasing surroundings • Attain widest range of benefit without degradation or undesirable and unintended consequences NEPA Section 101

Key Features of NEPA • Created national policies for promoting a healthy environment • Established CEQ • Required federal agencies to amend their own internal rules, policies to conform with NEPA goals and CEQ regulations • Established a framework for consideration of environmental consequences and possible mitigation options (EA-EIS process)

NEPA - Section 101 • Sets out environmental policies which direct the federal government to: • Act as trustee of the environment for succeeding generations • Assure safe, healthy, productive and aesthetically and culturally pleasing surroundings • Attain the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable or unintended consequences

NEPA - Section 101 • Preserve important historic, cultural, and natural aspects of our national heritage and maintain an environment which supports diversity and individual choice • Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources

NEPA’s Decisionmaking Framework • Use a systematic and interdisciplinary approach • Environment given appropriate consideration with economic and technical considerations NEPA Section 102

NEPA’s Decisionmaking Framework • Proposals include a detailed statement of • environmental impacts of the action • adverse impacts which cannot be avoided • alternatives to the proposed action • consequences of taking the proposed action • Consult with other Federal agencies • Involve the public NEPA Section 102

CEQ Regulations • Purpose, Policy and Mandate • Implement the “action forcing” provisions • Comply with procedures and achieve goals • Promote better decisions not just better documents • Integrate NEPA with planning & processes 40 CFR 1500 - 1508

CEQ Regulations • Purpose, Policy and Mandate • Encourage and facilitate public involvement in decisions • Identify reasonable alternatives, avoid and minimize effects • Reduce paperwork and delay FHWA 40 CFR 1500 - 1508

NEPA - Section 102 • NEPA applies to all federal policies, regulations and laws • Directs all federal agencies to: • Use a systematic interdisciplinary approach in planning and decision making • Ensure the integrated use of natural and social sciences and environmental design arts • Take into consideration unquantifiable environmental amenities and values as well as economic and technical factors in decision-making

NEPA - Section 102 • Prepare an EIS for “major federal actions significantly affecting the human environment” • Study alternatives for any proposal • Judicial interpretation: • In 1978 the Supreme Court declared that NEPA’s mandate was “essentially procedural” • In 1980 the Supreme Court held that once an agency has made a decision subject to NEPA’s requirements, the judicial role is limited to whether the agency has “considered” environmental consequences of it’s action.

Endangered Species Act – Section 7 Clean Air Act Safe Water Drinking Act Clean Water Act 404(b)(1) Farmland Protection Policy Act National Historic Preservation Act Floodplains Laws Resource Conservation and Recovery Act Archeological and Historic Preservation Act NEPA Process Brings in Other Laws • Oil Pollution Act • Wilderness Act • Wild and Scenic Rivers Act • Marine Mammal Protection Act • Farmland Protection Policy Act • Executive Order 12898 (Environmental Justice) • Public involvement, interagency coordination • Tribal consultation • Noise Standards • Public Hearing Requirements

NEPA “Documents” • Categorical Exclusion (CE) • Environmental Assessment (EA) • Finding of No Significant Impact (FONSI) • Notice of Intent (NOI) • Environmental Impact Statement (EIS) • Record of Decision (ROD)

Elements of NEPA Process • Alternatives analysis • Impact analysis • Mitigation • Public involvement • Interagency coordination • Documentation

Purpose and Need • Inform decisions • Critical foundation for decisions • Basis for reasonable alternatives, evaluations and comparisons • Establishes reasons for moving forward with Federal action • Basis for no-action discussion

Alternatives Analysis • Varies with Class of Action • Rigorously explore and objectively evaluate in the EIS • Reasonable range alternatives / reasonable number • No-action / no-build always included

Alternatives - CEQ • Alternatives discussed in the EIS include the “range” of all reasonable alternatives • A reasonable number of examples, covering the full spectrum of alternatives must be analyzed and compared

Alternatives Documentation • Describe how preliminary alternatives were developed and basis for elimination • Describe how reasonable alternatives were chosen • Clearly describe all reasonable alternatives 40 CFR 1502.14

“Significantly Affecting the Human Environment” • Significantly • Context – i.e. sensitive areas • Intensity - criteria in NEPA book p 49 (also in FS EAs) • Some agencies offer guidance - NY DEC • Human Environment • Human health • Natural environment • Built environment

Statutory Definition of Environment Natural and physical environment and … relationship of people with that environment 40 CFR 1508.14

Significant Impact Considerations • Beneficial or adverse • Public health or safety • Uniqueness of area • Controversy • Degree of uncertainty or precedent-setting 40 CFR 1508.27

Significant Impact Considerations • Cumulative impacts • Section 106 properties • Threatened or endangered species • Violation of law 40 CFR 1508.27

What is Covered by NEPA • Major federal actions • Federal plans, rules, programs • Projects requiring a Federal permit • Projects receiving Federal funding • Required to look at connected actions as well

When Does NEPA Not Apply? • Categorical Exclusion • Express Statutory Exemption • Certain laws implemented by EPA (Clean Air Act, Clean Water Act) • Alaska Pipeline • Defense Base Closure Act • Disaster Relief Act • Certain disaster restoration projects • Processes determined by Court to be “Functionally Equivalent” • CERCLA RI/FS process

Categorical Exclusion • CEQ- actions which do not individually or cumulatively have a significant effect on the human environment • Neither an EA nor EIS is required 40 CFR 1508.4 23 CFR 771.117(a)

Proposed Action Coordination and Analysis YES NO Significant Impact ? Unknown Significant impact Documented CE Listed CE Environmental Assessment Notice of Intent & Scoping Process Draft EIS Coordination and analysis as needed No significant impacts Public Comment Document appropriately Final EIS Finding of No Significant Impact (FONSI) Record of Decision (ROD) Agency Action Agency Action Agency Action

Scoping • Continuation of early involvement with affected agencies and interested public • Formally associated with EIS process • Invite participation • Determine the scope of the study • Determine important vs minor issues • Allocate assignments if appropriate • Identify other studies in area • Agree on timing of activities • 40 CFR 1501.7 • CEQ Scoping Guidance

Environmental Assessment • Document prepared for an action … where the significance of the social, economic, and environmental impacts are not clearly established • Concise public document • Briefly provide evidence and analysis • Include brief discussions of … • Not contain long descriptions or detailed data • Not mini EISs 23 CFR 771.115(c) 40 CFR 1508.9

Notice of Availability EA Process Environmental Studies / Coordination and Preparation of EA 15 day minimum EA Approved Notice of Availability & Public Hearing Yes No Notice of Availability Public Hearing ? 30 day minimum EIS Required ? Public Hearing 10 day minimum Approve the FONSI 23 CFR 771.119(d) - (h)

Finding Of No Significant Impact • Document that briefly presents why the action does not have a significant impact • Includes and references the EA • Notice of availability • sent to affected agencies • sent to Statewide clearinghouse (EO 12372) • published in local newspaper (recommended) • Available upon request by the public CEQ Q&A #37A 40 CFR 1508.13

Coordination and Involvement Prior to concluding an EIS, the responsible Federal official must: … consult with and obtain the comments of any Federal agency with jurisdiction by law or special expertise with the impacted resources … provide copies of statement to Federal, State and local agencies and the public

Interagency Coordination • Early and continuous participation in the NEPA process • Special expertise and information • Scoping agreements and concurrences • Establish timeframes • Consultation and permitting • Adoption of NEPA documents

Lead and Cooperating Agency • Lead agency … Sponsoring agency(ies) - NEPA process and project proponent • Cooperating agency … Federal agencies with jurisdiction by law (mandatory) or special expertise (optional) … State and local agencies … Tribe (on reservation) 40 CFR 1508.5 & 1508.16

Cooperating Agency Responsibility • Respond to lead agency’s request • Cooperate where jurisdiction by law • Attend scoping and coordination meetings • Provide meaningful and early input on issues of concern

Cooperating Agency Responsibility • Participate in joint public involvement activities • Review and provide comments on Pre-draft and Pre-final environmental documents

Requirements for an EIS(most also in EA) • Short, concise, stream-lined, integrated with other documents; • Rely on existing information where possible (incorporation and adoption); • Clearly and concisely discuss environmental issues • Consider reasonable range of alternatives including no impact (not so much in EA) • Consider cumulative impacts • Direct and indirect effects

Direct impacts … … caused by the action and occur at the same time and location Impacts Direct Environmental Impacts Project Action

Caused by the action and are later in time or farther removed in distance but are still reasonably foreseeable … Growth inducing effects – related effects of changes in patterns of land use, population density, or growth rate Indirect Impacts Indirect Environmental Impacts Project Action Other Actions 40 CFR 1508.8

Cumulative Impacts Result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions … … regardless of what agency or person undertakes such other actions… … Federal, non-federal, public and private must be considered

TEST 335 – Environmental Impact Analysis NEPA Overview January 3, 2011