NEPA Applicability Environmental Assessments January 5, 2011

1. NEPA ApplicabilityEnvironmental Assessments January 5, 2011

2. 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 Book 1 - 3

3. 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) NEPA Book

4. When Does NEPA Apply? • When any proposal for legislation or other major federal action is likely to have a significant effect on the quality of the human environment. NEPA §102(2)(C) NEPA Book 25-26

5. When Does NEPA Apply? • A federal agency’s decisions for actions, including • financing, assisting, conducting, or approving projects or programs; • agency rules, regulations, plans, policies, or procedures; and • legislative proposals. • Any time a Federal agency has discretion to choose among one or more alternative means of accomplishing a particular goal

6. When Does NEPA Apply? • When state, local, or private parties need a permit issued by a Federal agency. • When a party applies for a permit (for example, for crossing federal lands or impacting waters of the United States) the agency that is being asked to issue the permit must evaluate the environmental effects of the permit decision under NEPA. • Federal agencies might require the permittee to pay for the preparation of analyses, but the agency remains responsible for the scope and accuracy of the analysis.

7. When Does NEPA Apply? • “Proposal” – when a federal agency is actively proposing one or more alternative means of accomplishing a goal. • Proposal may exist even when an agency has not formally declared that one exists • However, preliminary planning or research activities can exist without constituting a proposal triggering NEPA • “Mere contemplation” of an action is not sufficient. Kleppe v. Sierra Club, 442 U.S. 347 (1979) NEPA Book 28 - 29

8. When Does NEPA Apply? • “Legislation” – a bill or legislative proposal submitted to Congress that is developed by or has the significant cooperation and support of a federal agency (other than appropriations). NEPA Book 29

9. When Does NEPA Apply? • “Major Federal Action” – any action in which a federal agency has the authority to incorporate or require changes to the proposed action if the action would have significant environmental effects. • “major” does not refer to the size of the action, but to the significance of its impact • Inaction by an agency may be considered a federal action if it is reviewable by a court NEPA Book 29 – 34

10. When Does NEPA Apply? • “Significantly” – refers to the context and intensity of the environmental effects of an action. Federal agencies may develop “significance thresholds” for preparing EISs and EAs. NEPA Book 34, Chapters 3 & 5

11. When Does NEPA Apply? • “Whether an action may significantly affect the environment “requires consideration of context and intensity.” Center for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008). • “Context delimits the scope of the agency's action, including the interests affected.” Id. (quoting Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001)). NEPA Book 49 - 52

12. When Does NEPA Apply? • “Intensity” refers to: • the “severity of impact,” (both beneficial and adverse impacts), • the degree to which the proposed action affects public health or safety, • the degree to which the effects on the quality of the human environment are likely to be highly controversial, • the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks, and • whether the action is related to other actions with individually insignificant but cumulatively significant impacts. NEPA Book 49 - 52

13. When Does NEPA Apply? • “The quality of the human environment” – the natural and physical environment and the relationship of people with that environment. • Includes effects on natural and built environment and human health • Does not include effects on economics, or social or psychological issues. NEPA Book 34 - 35, 56 - 58

14. When Does NEPA Not Apply? • No “proposal” yet • No likely “significant effect” • No “federal action” • Actions taken by the President • Actions taken by Congress • Actions taken by the federal courts • Actions that are purely private • Actions that are purely public state or local actions NEPA Book 29 - 36

15. 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 NEPA Book 35 - 40

16. Class Discussion: Does NEPA Apply? • Consider whether it is • A proposal • Legislation or other major federal action • Significantly affecting • The quality of the human environment

17. Class Discussion: Does NEPA Apply? • HUD loan for $3.5 million for construction of a 16-story, 221-unit high rise apartment building in an area containing no high rise projects in Portland, OR?

18. Class Discussion: Does NEPA Apply? YES • Federal agency (HUD) • “Major” undertaking • “Significant effect” on the quality of the human environment.

19. Class Discussion: Does NEPA Apply? • Mining operations on federal lands causing a cumulative surface disturbance of five acres or less per year, where BLM reviews notices of intent to mine, monitors operations to ensure they are not causing unnecessary or undue degradation, and conducts periodic inspections to ensure compliance.

20. Class Discussion: Does NEPA Apply? NO, only “marginal” federal action. • Operators do not receive federal funding. • BLM's “systematic approval” of these mines is discretionary. • BLM's obligation to monitor compliance with statutory and regulatory requirements to deter undue degradation is insufficient.

21. Class Discussion: Does NEPA Apply? • Corps of Engineers’ issuance of permit authorizing private party to construct, on and adjoining his property, a commercial fishing pier extending about 1,000 feet into the Atlantic Ocean, and to construct, on the opposite side of the bank, a fishing and boating pier on Bogue Sound, including a boat basin and access channel created by dredging.

22. Class Discussion: Does NEPA Apply? NO, not a “major federal action” • Financed wholly from private sources. • Not federally planned or designed. • Construction of the piers and the dredging of the marina to be performed by a private contractor, not by the Corps of Engineers.

23. Class Discussion: Does NEPA Apply? NO, not a “major federal action” • The effect of granting the permit will be isolated, little or no impact outside the immediate area. • Bogue Bank is already host to seven commercial fishing piers similar to the one in question, one located 3 1/2 miles east, another 2 miles west, so the Corps' action does not have the effect of introducing a previously non-existent use into the area.

24. 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

25. The NEPA Process • NEPA requires federal agencies to integrate the NEPA process into their activities at the earliest possible time. • Agencies must prepare NEPA documents before any irreversible or irretrievable commitment of resources. NEPA Book 26

26. The NEPA Process • Four-step balancing test developed by courts to use in determining whether agency should commence NEPA review: • Likelihood or imminence of the proposed action • Availability of information about the proposed action and alternatives • Irretrievable commitment of resources made • Severity of environmental effects NEPA Book 26 - 27

27. The NEPA Process • The NEPA process begins when an agency develops a proposal to address a need to take an action. • The need to take an action may be something the agency identifies itself, or it may be a need to make a decision on a proposal brought to it by someone outside of the agency, for example, an applicant for a permit. NEPA Book 28

28. The NEPA Process • Based on the need, the agency develops a proposal for action. • If it is the only Federal agency involved, that agency will automatically be the “lead agency,” which means it has the primary responsibility for compliance with NEPA. • Once it has developed a proposed action, the agency will enter the initial analytical approach to help it determine whether the agency will pursue the path of a Categorical Exclusion (CE), an Environmental Assessment (EA), or an Environmental Impact Statement (EIS).

29. Purpose of and Need for Action • Outlines the purpose and need which agency is addressing by proposed action. • Forms critical foundation for decisions. • Establishes basis for reasonable alternatives, evaluations and comparisons. • Provides reasons for moving forward with Federal action.

30. Purpose and Need con’t • Purpose is the “Problem Statement” • Transportation as an example: • Transportation demand • Safety • Legislative direction • Economic development or planned growth • Condition of existing facilities • The “need” supports the “purpose” • Facts demonstrating a "need" exists • Analysis showing how need is met by proposed action.

31. Categorical Exclusion • Actions that are routine • Actions which in the agency’s experience do not individually or cumulatively have a significant impact on the environment and do not require preparation of an EA or EIS • Normally excluded actions may require more extensive review if potential exists for public controversy NEPA Book 35 - 36

32. Examples: Categorical Exclusion • Federal Highway Administration regulations, 23 C.F.R. § 771.115(b). • installation of bicycle and pedestrian lanes, paths, and facilities, the installation of noise barriers and the installation of fencing where no substantial land acquisition or traffic disruption will occur • modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g., parking, weaving, turning, climbing)

33. Examples: Categorical Exclusion • Federal Highway Administration regulations, 23 C.F.R. § 771.115(b). • highway safety or traffic operations improvement projects including the installation of ramp metering control devices and lighting • bridge rehabilitation, reconstruction or replacement

34. Environmental Assessment (EA) • Defined as a concise document that • Provides analysis to determine if an Environmental Impact Statement (IS) is necessary • Means by which a Federal Agency complies with (and demonstrates compliance with) NEPA when EIS is not necessary • Facilitates preparation of EIS when necessary NEPA Book Chapter 3

35. Environmental Assessment (EA) • Addresses environmental effects that are not anticipated to cause significant impacts when no categorical exclusion exists • Evaluates actions that have potential effects that can be mitigated to less than significant levels • Importance • 50,000 per year vs 500 EISs NEPA Book Chapter 3

36. Environmental Assessment (EA) • Less detailed than an EIS but must address similar elements including • Description of proposed action • Purpose and need for action • Alternatives including no action • Description of affected environment NEPA Book Chapter 3

37. Environmental Assessment (EA) • Less detailed than an EIS but must address similar elements including • Consequences of proposed action and alternatives • Cumulative and long-term environmental effects • Degree of controversy • Mitigation measures (if appropriate) NEPA Book Chapter 3

38. Environmental Assessment (EA) • Determines whether there will be significant impacts from the proposed action. • EA process ends in either • Finding of No Significant Impact (FONSI), action may proceed, or • Preparation of EIS • EA process generally takes 6-12 months, but depending on complexity can take much longer NEPA Book Chapter 3

39. Finding of No Significant Impact (FONSI) • Decision document which follows completion of an EA and states Agency’s determination of no significant impact • Briefly presents why an action does not have a significant impact • Must include and reference the environmental assessment NEPA Book Chapter 3

40. Finding of No Significant Impact (FONSI) • Subject to 30-day review and comment by public if proposed action is • An issue of national concern • Similar to actions which require an EIS • An unprecedented action NEPA Book Chapter 3

41. Mitigated FONSIs • Rely on mitigation to reduce the impact below significance “threshold” • Allows the agency to forego the preparation of an EIS by making changes to the project or mitigation measures • NEPA does not address appropriateness of mitigated FONSIs, but in 2010 CEQ issued draft guidance NEPA Book Chapter 3

42. Mitigated FONSIs • Agency must demonstrate it has taken a hard look at environmental consequences • Agency must show mitigation measures will reduce impacts to less-than-significant levels • Mitigation must be specific and project related • Agency committed to implementation • FONSI supported by adequate EA NEPA Book Chapter 3

43. Comparisons – EAs and EISs NEPA Task Force Report to the Council on Environmental Quality: Modernizing NEPA Implementation (September 2003).

44. Class Discussion • Relationship between the increase in EAs over EISs and the cost of performing EISs? • Relationship between the increase in Eas and the increasing popularity of mitigated FONSIs? • Should federal agencies/project proponents be permitted to avoid a full-blown EIS by negotiating a mitigated FONSI?