national environmental policy act (nepa) overview - helen clough, judith kurtzman

National Environmental Policy Act OverviewRiver Management SocietyDenver, ColoradoApril 15, 2014

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NEPA History

• Events of the 1940s, 1950s, 1960s paved the way for passage

• Passed by Congress December 23, 1969• Signed by President Richard Nixon January 1,

1970

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NEPA

• Prevent or eliminate damage to the environment• Create/maintain harmony between people and

the environment• Understand ecological systems and natural

resources• Establish a Council on Environmental Quality

(CEQ)

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NEPA Mandates

• Integrated interdisciplinary approach• Natural and social sciences and environmental

design arts• Ensures that the environment is given consideration in planning and decision making• Disclosure/informed decisions• Public involvement 4

NEPA Implementation

• Law• CEQ Regulations (apply to all)• Agency regulations (both Departmental level and

individual agencies)• Agency policies• Agency handbooks• Regional/local procedures

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NEPA

• The courts have found ~ nothing in NEPA prohibits “unwise decisions” only “environmentally uninformed” decisions

• Other laws may impose more substantive environmental obligations

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Major Federal Actions

• New and continuing• Activities• Funding• Permits

• Categories of activities• Plans• Policies• Programs• Projects

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Significance

• Context• Society as a whole• Regional• local

• Intensity• Severity of impacts• Degree of controversy• Uncertainty of impacts• Cumulative impacts• Cultural resources, endangered species

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Significance

• Defined by thresholds• Policy or law• Science• Decision maker’s opinion (politics, public pressure, personal

beliefs)

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NEPA Documents

• 3 Primary NEPA Documents:• Categorical Exclusions (CEs or CATEXs)• Environmental Assessments (EAs)• Environmental Impact Statements (EISs)

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Categorical Exclusions (CE/CATEX)

• CEQ § 1508.4

• A proposed action qualifies for a CE/CATEX:

• When the action would not individually or cumulatively cause a significant impact on the human environment.

• Matches a category in the Agency’s list of CEs/CATEXs in their published NEPA Regulations.

• No extraordinary circumstances could occur.

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• Effect historic resources (NRHP)

• Impact ESA listed or proposed species

• Violates a federal, state, or tribal law

• Effects environmental justice• Limits access to Indian

sacred sites or affects the integrity of the site

• Contributes to introduction or spread of noxious/invasive weeds

• Public health or safety• Natural resources or

unique geographic characteristics (e.g., recreation, wetlands, wilderness)

• Highly controversial effects/unresolved conflicts

• High uncertainty ~ risk• Establish precedent• Cumulatively significant

Extraordinary Circumstances occur when a normally excluded action may have a significant effect on:

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Environmental Assessment (EA)• CEQ § 1508.9

• A proposed action requires an EA if:• The proposed action is not eligible for a CE/CATEX• The proposed action probably would not cause significant,

adverse environmental effects

• Finding of No Significant Impact (FONSI)

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Environmental Impact Statement

• CEQ § 1508.11

• A proposed action requires an EIS if:• The proposed action does not qualify for a CE/CATEX or

FONSI• The proposed action might cause significant, adverse

environmental effects (degradation of the environment or significant threat or hazard to public health or safety)

• Might have substantial environmental controversy concerning the significance or nature of the environmental impact of the proposed action

• Record of Decision (ROD) 14

3 Levels of Environmental Analysis and Documentation

• The main differences between an EA and EIS• An EIS tends to be more complicated resulting in higher cost

and a longer time commitment. • An EA ends in a FONSI; an EIS ends in a ROD• Generally, an EA has less public participation than an EIS. • The burden of proof, in the case of a lawsuit is different

between the two documents ~ an EA can be harder for an agency to defend.

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NEPA

• 3 Primary Functions of NEPA Documents:• Provide sufficient information to the decision-

maker to make an informed decision• Provide that procedural requirements of NEPA

have been followed and completed• Informs the interested public

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Suggested Content of an EIS/EA• CEQ § 1502.10 Recommended format.

• Cover sheet• Summary• Table of Contents• Purpose of and need for action• Alternatives including the proposed action• Affected environment• Environmental consequences• List of preparers• List of Agencies, Organizations, and persons to whom copies of

the statement are sent• Index• Appendices

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EA/EIS Steps

• Purpose and Need• Identify Issues• Develop Alternatives• Evaluation Consequences• Public Review/Comment• Decision

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Purpose and Need

• Who wants to do what, when, where• Need – the why• List project objectives• Scope of analysis (influence of laws, regulations,

other NEPA documents . . .)• Summarize decision(s) to be made

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Identify Issues - Scoping

• Conflicts, threats, opportunities• Come from other government agencies, Native

Americans, and other concerned citizens• Federal agency’s analysis, literature, review and

IDT meetings• Purpose

• Determine actions• Alternatives• Impacts

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Alternatives

• No action – no change from current situation• Proposed action• Include all reasonable alternatives – including

those not considered in detail• Explain why some alternatives not considered in

detail• Consider equally all alternatives considered in

detail

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Affected environment

• Physical: soil, air, water• Biological: Plants, animal• Social: infrastructure, population, health, quality

of life, recreation• Economic: income, employment, cost of project

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Environmental Consequences

• Effects on physical, biological, social, economic environment

• Change from implementing each alternative (including no action)

• Beneficial and adverse• Direct, indirect, cumulative

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Environmental Consequences

• Direct – same time and place• Indirect – distant in time or place or both• Cumulative –past actions, proposed action(s) and reasonably foreseeable future actions

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Mitigation

• Ways to eliminate, reduce, compensate for adverse effects

• Can be used to reduce impacts from significant to non significant• Must be evaluated as part of an alternative• Measures only required if part of the decision

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Public Review and Decision

• Type of review depends on document

• EA – review then finding of no significant impact and decision or go to EIS

• EIS – review of draft EIS, final EIS released and decision (Record of Decision)

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FONSI

• Finding of No Significant Impact – end of EA process

• If there are significant impacts – EIS required

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Record of Decision

• EIS – Record of Decision

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Implementation & Monitoring

• 3 categories of monitoring• Implementation – did we do what we said we would do• Effectiveness – are things happening as we predicted? Is our

mitigation working as proposed?• Validation – reviews the assumptions we made during our analysis – may involve intensive data analysis and research

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Proposed Federal Action

Categorical Exclusion Exists, and No Extraordinary

Circumstances Present

Internal Scoping

No Significant Environmental Effects

Significant Environmental Effects

NEPA Decision Making

Notice of Intent (NOI)

Environmental Assessment

Public Scoping*

Significance of Environmental Effects

Uncertain

Categorically Excluded from

Further Documentation

Environmental Action Statement

(EAS)**

Public Scoping

Draft Environmental Impact Statement

Final EIS

Record of Decision (ROD)

* Public scoping for an EA is optional under 40 CFR 1500 et seq., but public involvement required under DOI NEPA regs., 43 CFR 46.305.

** Individual programs (e.g., WSFR, ES for HCPs, Partners Program) may require use of other forms ***FONSI is the FWS decision document for an EA, but not considered as such under NEPA regulations

Implementation

NOA & Comment Period

NOA & Waiting Period

Finding of No Significant Impact

(FONSI)***

Significant Impacts

No Significant Impacts

OptionalPublic Scoping

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Summary & Review

• Categorical Exclusion (CE, CatEx), Environmental Assessment (EA), Environmental Impact Statement (EIS)

• Purpose & Need, Issues, Alternatives, Affected Environment, Environmental Consequences, Mitigation

• Public Review & Comment• Decision – Finding of No Significant Impact

(FONSI) or Record of Decision (ROD)• Implementation & Monitoring 31

Questions/Comments

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