Alternatives Analysis Contents of an EIS January 24, 2011 TEST 335

1. Alternatives AnalysisContents of an EIS January 24, 2011TEST 335

2. Alternatives Analysis • The identification, consideration, and analysis of alternatives are key to the NEPA process and goal of objective decision-making. • Consideration of alternatives leads to a solution that satisfies the project need and protects environmental and community resources. NEPA Book 91-97

3. Alternatives Analysis • Varies with Class of Action • Rigorously explore and objectively evaluate alternatives in the EIS • Reasonable range of alternatives • reasonable number of alternatives • No-action / no-build always included NEPA Book 91-97

4. Alternatives - CEQ • The Council on Environmental Quality refers to the alternatives analysis section as the "heart of the EIS," and requires agencies to • Rigorously explore and objectively evaluate all reasonable alternatives and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. • Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits. NEPA Book 91

5. Alternatives - CEQ • Include reasonable alternatives not within the jurisdiction of the lead agency. • Include the alternative of no action. • Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference. • Include appropriate mitigation measures not already included in the proposed action or alternatives. NEPA Book 91

6. Alternatives - FHWA • Alternatives must be evaluated and decisions made in the best overall public interest considering: • the need for safe and efficient transportation • social, economic, and environmental impacts • National, state, and local environmental goals 23 CFR 771.105(b) and 23 CFR 771.111(f)

7. Alternatives - FHWA • Ensure meaningful evaluation of alternatives • Logical termini • Independent utility • Restrict consideration of alternatives for reasonably foreseeable improvement 23 CFR 771.105(b) and 23 CFR 771.111(f)

8. Alternatives Screening • Alternatives analysis should clearly indicate why and how the particular range of project alternatives was developed, including what kind of public and agency input was used. NEPA Book 91 - 97

9. Alternatives Screening • Should explain why and how alternatives were eliminated from consideration. • What criteria were used to eliminate alternatives, • at what point in the process the alternatives were removed, • who was involved in establishing the criteria for assessing alternatives, and • the measures for assessing the alternatives' effectiveness. NEPA Book 91 - 97

10. Range of Alternatives • During the draft EIS stage all reasonable alternatives, or the reasonable range of alternatives, should be considered and discussed at a comparable level of detail to avoid any indication of a bias towards a particular alternative(s). NEPA Book 91 - 97 40 CFR 1502.14

11. Range of Alternatives • Although the "no-build alternative" (which might include short-term minor activities) might not seem reasonable, it must always be included in the analysis. • In some cases, the no-build alternative may be a reasonable alternative, especially when the impacts are great and the need is relatively minor, but generally it serves as a baseline against which the other alternatives can be compared. NEPA Book 91 - 97

12. Range of Alternatives • What is an agency's obligation under NEPA to evaluate alternatives to a proposed action developed by an applicant for a federal permit or license? • Question arises from a belief that projects conceived and developed by private parties should not be questioned or second-guessed by the government. • Discussion of developing two standards to determining the range of alternatives to be evaluated: “traditional” standard for Federal projects, and second standard for evaluating alternatives presented by a private applicant for a permit or license.

13. Range of Alternatives • Neither NEPA nor the CEQ regulations make a distinction between actions initiated by a Federal agency and by applicants. • Consistent with the concept that an agency's responsibilities to examine alternative sites has always been “bounded by some notion of feasibility” to avoid NEPA from becoming “an exercise in frivolous boilerplate”.

14. Range of Alternatives • NEPA has never been interpreted to require examination of purely conjectural possibilities whose implementation is deemed remote and speculative. Rather, the agency's duty is to consider “alternatives as they exist and are likely to exist.” • No need to disregard the applicant's purposes and needs and the common sense realities of a given situation in the development of alternatives.

15. Range of Alternatives • Other factors to be developed during the scoping process -- comments received from the public, other government agencies and institutions, and development of the agency's own environmental data – should be incorporated into the decision of which alternatives to seriously evaluate in the EIS.

16. Other Requirements Involving Alternatives Analyses • Beyond the CEQ requirement of evaluating all or a reasonable number representative of the full spectrum of reasonable alternatives, there are other requirements for analyzing alternatives. • Section 4(f) • Executive Orders on Wetlands and Floodplains • To address these requirements and demonstrate that some alternatives not prudent or practicable, must develop a well-justified purpose and need statement. NEPA Book 126

17. Other Requirements Involving Alternatives Analyses • Section 4(f): Provision in the Department of Transportation Act (DOT Act) of 1966 which prohibited the Federal Highway Administration (FHWA) and other DOT agencies from approving the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges, or public and private historical sites unless • There is no feasible and prudent alternative to the use of land. • The action includes all possible planning to minimize harm to the property resulting from use. NEPA Book 126

18. Other Requirements Involving Alternatives Analyses • In NEPA decision-making, use of land from a Section 4(f) protected property may not be approved unless a determination is made that there is no feasible and prudent alternative for such use. • Factors that could render an alternative “not prudent” include cost and environmental impacts. • If an alternative does not meet the action's purpose or need, then the alternative is not prudent. NEPA Book 126

19. Other Requirements Involving Alternatives Analyses • EO 11988 (5/24/77) requires executive agencies to determine, prior to taking any proposed action, whether the proposed action will occur in a floodplain. • If an agency has determined to, or proposes to, conduct, support, or allow an action to be located in a floodplain, the agency shall consider alternatives to avoid adverse effects and incompatible development in the floodplains. NEPA Book 126

20. Other Requirements Involving Alternatives Analyses • If a proposed action is to be located in a wetland or significantly encroaches upon a floodplain, a finding must be made that there is no practicable alternative to the wetland take or floodplain encroachment. • Any alternative that does not meet the need for the action is not practicable. NEPA Book 126

21. Other Requirements Involving Alternatives Analyses • If the action's purpose and need are not adequately addressed, specifically delineated, and properly justified, resource agencies, interest groups, the public, and others will be able to generate one or possibly several alternatives that avoid or limit the impact and “appear” practicable. • A well-described justification of the action's purpose and need may prevent long and involved negotiations or additional analyses demonstrating that an alternative is not practicable. NEPA Book 126

22. Other Requirements Involving Alternatives Analyses • As a rule, if an alternative does not satisfy the purpose and need for the action, it should not be included in the analysis as an apparent and reasonable alternative. • There are times when an alternative that is not reasonable is included, such as when another agency requests inclusion due to public expectation. • In such cases, it should be clearly explained why the alternative is not reasonable (or prudent or practicable), why it is being analyzed in detail, and why it will not be selected. NEPA Book 126

23. Alternatives Documentation • Describe how preliminary alternatives were developed and basis for elimination • Describe how reasonable alternatives were chosen • Clearly describe all reasonable alternatives • Comparable level of detail • Include discussion of the no-build • Be prepared to defend logical termini, independent utility NEPA Book 91-97 40 CFR 1502.14

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25. NEPA Documentation • Documentation (along with dissemination) is an essential component of the NEPA project development process, which supports and complements public involvement and interagency coordination. • NEPA requires that Federal agencies disclose the results of their analysis and the effects of project implementation on the environment and solicit comments on the proposals from interested and affected parties.

26. NEPA Documentation • Documenting the NEPA process • Provides for complete disclosure to the public; • Allows others an opportunity to provide input and comment on proposals, alternatives, and environmental impacts; and • Provides the appropriate information for the decision-maker to make a reasoned choice among alternatives.

27. Overview of EIS Process • The EIS process in completed in the following ordered steps: • Determine Lead Agency • Publish Notice of Intent (NOI) • Conduct Scoping • Draft EIS • Public Hearing • Final EIS • Record of Decision (ROD). NEPA Book 71 – 83 Figure 4-1

28. Overview of EIS Process • The NOI is published in the Federal Register by the lead Federal agency and signals the initiation of the process. • Scoping, an open process involving the public and other Federal, state and local, agencies, commences immediately to identify the major and important issues for consideration during the study. NEPA Book 71 - 83

29. Overview of EIS Process • Public involvement and agency coordination continues throughout the entire process. • Draft EIS provides a detailed description of • the proposal, • the purpose and need, • reasonable alternatives, • the affected environment, and • presents analysis of the anticipated beneficial and adverse environmental effects of the alternatives. NEPA Book 71 - 83

30. Overview of EIS Process • Following a formal comment period and receipt of comments from the public and other agencies, the FEIS will be developed and issued. • The FEIS will address the comments on the draft and identify, based on analysis and comments, the “preferred alternative”. NEPA Book 71 - 83

31. Public Notice Aspects of EIS • When a decision to prepare an EIS has been made, a Notice of Intent (NOI) to prepare the EIS is published in the Federal Register. • Notice informs the public that an EIS will be prepared and that the Scoping Process will begin. • Scoping is the early and open process in which public participation is sought to help determine the scope of issues to be addressed in an EIS. NEPA Book 70 - 83

32. Public Notice Aspects of EIS • Once the Draft EIS (DEIS) has been prepared, the document is submitted to the Environmental Protection Agency (EPA), EPA issues a Notice of Availability (NOA) of the DEIS in the Federal Register, and the DEIS is made available for public review and comment. • Public hearings to receive oral comments on an EIS are conducted during a minimum 60-day public comment period, but no sooner than 30 days after public notification of such hearings. NEPA Book 70 - 83

33. Public Notice Aspects of EIS • The agency then considers all written and oral comments received, before preparing a Final Environmental Impact Statement (FEIS). Upon publication of the FEIS, the EPA again publishes a Notice of Availability. • No sooner than 30 days after the FEIS is published, the lead agency prepares a Record of Decision (ROD). NEPA Book 70 - 83

34. Public Notice Aspects of EIS • The ROD is published in the Federal Register and provides a concise public record of the final decision on a proposed action. • Upon completion of the NEPA compliance process (whether through completion of a Categorical Exclusion Checklist or issuance of a FONSI or ROD), the agency is free to implement the proposed action. NEPA Book 70 - 83

35. EIS Contents • 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 NEPA Book Chap. 5

36. EIS Contents • Summary • Purpose and Need • Alternatives • Affected Environment - Existing Setting • Social, economic and natural environmental • Environmentally Sensitive Features NEPA Book Chap. 5

37. EIS Contents • Environmental Consequences • Probable Environmental Impacts and Mitigation • Comments and description of coordination NEPA Book Chap. 5

38. Sample EISs • Warm Springs Habitat Enhancement Project • Plains Exploration's Eagle Prospect and Noble Basin Oil and Gas Master Developement Plan • Mississippi River Gulf Outlet (MRGO) Restoration Project • Rice Valley Solar Project