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acquainted with those who actually have to work with t h
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million over the original plan. I think this is significant
and consistent with President Reagan's Economic Recovery Plan.
In conclusion, I am sold on the EIS process; not just because I
support environmental protection or environmental goals, but,
because NEPA is such a good decision-making process. A process
of analyzing alternatives, consulting with affected parties,
getting the facts about the major issues and analyzing their
impacts - that, to me, is the way decision-making should occur
in a democratic society. The NEPA analysis gets at the heart
of the environmental issues that are the most difficult to deal
with - siting, natural resource preservation or wise management
and utilization, community disruption - those things that cause
the most problems in project formulation. So from an
environmental protection point of view, even as a regulator, I
find a tremendous utility in the NEPA process.
I am extremely pleased that Nancy Nord, Tom Sheckells, and
Lance Wood have agreed to come from Washington to address us
today. I know that you are eager to hear what they have to
say. I encourage each of you to take an active part in the
workshops. I hope this Conference will help us improve our
efficiency in accomplishing the NEPA process and will result in
a significantly improved quality in the human environment. I
look forward to meeting each of you personally so please do not
hesitate to introduce yourselves to me during the breaks or at
the social hour this evening.
The Administrator and the Regional Administrators have
developed a list of management goals for 1982. Some of these
are closely associated with the EIS process. One of the major
goals is improving the quality of the scientific information
upon which we make policy, regulatory, and enforcement
decisions. Obviously, the EIS process can be a major item in
improving our scientific base. Other goals include "the review
of regulations," and "reducing backlogs and meeting
commitments." In regard to these, I would like to leave one
charge with you. It is this - to ensure that we continue to
have a healthy EIS review of significant projects, they must be
done with minimum administrative processes, close coordination,
and in a timely manner.
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THE ROLE OF THE NEW CEQ IN THE REAGAN ADMINISTRATION
NANCY NORD, GENERAL COUNSEL
COUNCIL ON ENVIRONMENTAL QUALITY
WSHINGTON, D.C.
I am especially pleased to have this opportunity to tell you
about the role of the Council on Environmental Quality in the
ne iv Administration. I have been repeatedly surprised, since
taking the job as CEQ' s General Counsel, to find out from many
quarters that I work for an agency that doesn't exist any
more. Therefore, I am happy to be able to report to you that
CEQ is alive and well, although it is a much thinner agency
than it was in the past.
In understanding the role of the agency in the new
Administration it is important to look at how the agency has
evolved over its 11-year life span. The Council was created to
advise the President, the Congress, and the public on
environmental matters and to ensure that federal agency
decision-making gives full consideration to environmental
factors. The Council was created on January 1, 1970, with the
enactment of the National Environmental Policy Act of
1969 (NEPA) . NEPA is modeled on the Full Employment Act of
1946, which established the Council of Economic Advisors (CEA)
and, indeed, CEA and CEQ are sister agencies in the Executive
Office of the President. By placing CEQ within the Executive
Office of the President, Congress wanted to guarantee direct
access to the President, and maintain independence from the
mission-oriented line federal agencies. The Council was
intended to provide independent policy review with regard to
agencies directly administering major environmental programs.
Title II of NEPA assigns certain specific duties to the Council
and those include:
o providing advice to the President and the Congress;
o overseeing agency implementation of NEPA, including
its environmental impact statement requirements;
o developing and improving environmental data and
monitoring capabilities government-wide; and,
o assisting and advising the President in the
preparation of the Annual Environmental Quality
Report to the Congress.
Further, in 1977, the Council was directed by Executive Order
11991 to promulgate regulations applicable to federal agencies
concerning implementation of the procedural provisions of
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NEPA. The purpose of the regulations was to make the
environmental impact statement process mandated by NEPA a mors
useful cool to agency decision-makers and those regulations
went into effect on July 30, 1979. The Executive Order also
directed the Council to issue procedures under Section 309 of
the Clean Air Act, which established CEQ as a mediator for
environmental disputes among agencies.
CEQ, like many agencies, has experienced a substantial staff
reduction. There has also been a complete turnover in the
professional staff at the agency since the new Administration
took office. These two factors have led a number of people to
believe that CEQ has been abolished or is about to be
abolished. This, of course, is not true and the White House
has indicated that it expects CEQ to fully carry out its
statutory responsibilities and actively participate in
development of administration policy dealing with environmental
issues. This is not to say that the Council will not feel the
effects of a reduced staff and budget or that it will be able
to engage in all the types of activities undertaken by the
former CEQ. Instead, we will have to more carefully pick our
priorities to guarantee that our limited resources are used in
the best possible way.
The Chairman of CEQ is A. Alan Hill. Immediately prior to
joining CEQ he was a small businessman in California. He also
has experience working for the California Department of Natural
Resources. Chairman Hill has been working with the White House
to develop the agency's work projects for the near-term
future. CEQ's priorities will, of course, further evolve as we
get additional direction from the White House and as Council
Members develop interests and projects. Of highest priority to
the Council during fiscal year 1982 will be carrying out our
NEPA oversight responsibilities. I would like to discuss with
you CEQ's plans in this regard.
As you all know, NEPA requires that agencies consider the
environmental effects of a major proposal before undertaking
the activity. In order to evidence this consideration the
agencies must produce an environmental impact statement.
Congress's guidance to the agencies as to when a statement must
be produced and what must be in it was fairly general in its
terms. In fact, all Congress said was that a statement must be
produced whenever an agency undertook a "major Federal action"
having a significant environmental effect. Congress stopped
there and left it to the agencies and courts to flesh out those
rather bare statutory bones. Shortly after NEPA's enactment,
CEQ issued guidelines on environmental impact statement
preparation. These guidelines were followed with varying
degrees of consistency by the agencies. In 1978, the President
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directed CEQ to issue regulations, binding on all federal
agencies, clarifying the questions of when impact statemonts
must be prepared and what elements of information must b
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a substantial number of comments from state and local units of
government. I am disappointed that few of the environmental
groups have responded to the request as yet. I am hopeful that
these groups will be submitting their views in the near future.
Although it is somewhat premature to make a final judgement,
based on the comments we have received to date, I can make some
general observations. First, there seems to be a consensus
that the CEQ regulations are bringing about useful changes in
the environmental review process. Several of the business
groups commented that the promise of consistency provided by
the CEQ regulations is an important goal from the standpoint of
a company which needs to make business decisions based on
federal agency activity. This promise of consistency has not
necessarily been borne out in practice, however.
The comments indicate that the scoping process, in concept, is
a useful tool for identifying controversial issues at an early
stage. Several of the commentors indicated that the scoping
procedures need to be improved. In this regard, the problem of
obtaining cooperation from other federal agencies at an early
point has been cited. Several commentors indicated the need
for clarification as to an agency's obligation to consider
issues raised outside the context of scoping and at a later
point in the process. Some of the comments do indicate that
certain commentors do not understand the correct purpose of
scoping and still see it as the first opportunity to discuss
the merits of the proposal. Apparently we will have to
continue doing missionary work on proper use of the scoping
process.
A number of commentors identified the "tiering" concept as
being one of the most potentially useful concepts in the CEQ
regulations. When properly used, tiering can eliminate much
redundant analysis when the agency's review progresses from
general programs to specific projects. Another question posed
was whether categorical exclusions should be reviewed and
possibly expanded. To this question we received an
overwhelming yes. The experience gained by living with the
regulations for 2 years indicates that it is time to look at
the types of review that various activities receive. The
Forest Service has recently decided to expand its categorical
exclusions. The council has had several meetings with the
Department of Housing and Urban Development to look at the same
question. We will be encouraging other agencies to begin the
same kind of analysis. The request for comments asks questions
other than those outlined above. I hope that you will take the
opportunity to let us have the benefit of your thoughts on this
process.
CEQ's perspective as a White House agency gives it a unique
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ability to be a cross-cutting agency. Indeed, the members of
the new CEQ see the agency's main function as a mediator,
facilitator, and environmental problem solver for the rest of
the federal establishment. The agency's role as a mediator of
enviromental disputes between agencies is spelled out in the
Clean Air Act and in Executive Order 11991. Beyond that
function, however, the members are convinced that CEQ can be
helpful to other federal agencies in identifying potential
problems and seeking solutions. It is one of the agency's
highest priorities to work with the various agencies to
identify those portions of their NEPA regulations that add
delays and inefficiencies to the environmental assessment
process. The members of the Council strongly believe in the
goals of the National Environmental Policy Act. Indeed, we see
our efforts to review the EIS process as central in carrying
forward the goals of NEPA.
"THE ROLE OF EPA UNDER THE NATIONAL
ENVIRONMENTAL POLICY ACT IN THE 1980's"
Thomas R. Scheckells, Deputy Director,
Office of Federal Activities
EPA, Washington, DC
Good Morning! It is a pleasure to be here and speak at Region
IV's Annual NEPA Conference.
As I look around the room at the various agencies represented
here, I cannot help thinking about all the changes that are
occurring in the Federal Government. Indeed, I am sure that
this is a topic on everyone's minds. Today, federal policy is
being re-examined on a variety of issues. Many of the changes
being proposed will affect not only agency structure but the
legislation and regulations that govern agency activities.
Environmental legislation, such as the Clean Air Act and Clean
Water Act, is under scrutiny from a number of entities. NEPA
and the CEQ regulations are also coming under review. As most
of you already know, CEQ published a Notice in the Federal
Register on August 14 requesting comments on 11 items in the
CEQ regulations. We are presently developing EPA's response to
the request based upon our experience in preparing EIS1s and
reviewing other agencies' EIS's. We hope that other agencies
are planning to respond. This is a good opportunity to let CEQ
know your feelings about the regulations and any changes that
you would like to see made. EPA would also like to hear your
recommendations for reform.
Given all the changes that are occurring in the Federal
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agencies and possibly the CEQ regulations, those of you who are
involved with NEPA must be wondering what your agency's role
will oe under this statute in the future. Today, I would like
to share my thoughts with you on what I perceive EPA's role
will be under NEPA in the 1980's.
Before looking into the future, I would like to reflect for a
few moments on EPA's experiences with NEPA. Specifically, I
would like to address some of the benefits that have been
derived from the EIS process.
There is no doubt that benefits have accrued from NEPA and the
EIS process. On EPA-prepared EIS's, one important benefit has
been the reduction in project costs due to the selection of
more cost-effective alternatives. A good example of this is a
study conducted on 58 EIS's under the wastewater treatment
construction grants program which were completed during 1977
and 1978. The study determined that there was an average
reduction of $12 million in project costs due to modifications
attributed to the EIS. Original project costs averaged $53
million and EIS preparation costs averaged $50 thousand.
The EIS process has also enhanced the opportunity for public
participation in federal decision-making. In the same
construction grants study, we found that every EIS provided at
least one opportunity for public involvement in wastewater
project planning. The most common form of public participation
was the public meeting, which was held on 95 percent of the
EIS's. This was followed by public hearings, which were
conducted on almost 90 percent of the EIS's.
Another benefit of the EIS process is protecting natural
resources. For example, as a result of the EIS process,
changes were made in the capacity and service area of a
municipal sewage treatment plant in Modesto, CA. These changes
were made to protect prime agricultural land3.
Finally, the EIS process has encouraged interagency
coordination, thereby eliminating duplicative analyses and
saving time and money in the environmental review process. A
good example of where this has occurred is on a proposed
refinery in Alaska. The project required permits from EPA, the
Corps of Engineers, Department of Transportation, and the state
and local governments. Our Region X designed the EIS for the
project so that the analysis met the requirements of NEPA and
provided all the necessary documentation for preliminary permit
decisions. This departed from the traditional method of
processing the permits separately. As a result of this
approach, there were significant savings in staff time and
administrative costs and reductions in the overall turnaround
time for processing the permits. Moreover, the Corps did not
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have to prepare a separate Environmental Impact Statement for
the Section 404 permit.
Tnese illustrate some of the benefits that can be achieved
through the EIS process. However, I must be honest in saying
that EPA is not without its problems in preparing EIS's. We
share many of the same problems as other agencies including:
- Timing, i.e., getting the EIS prepared early in the
planning process and avoiding delays;
- Misuse of the EIS process by parties outside the Federal
government attempting to kill or delay a project rather
than investigate environmental effects;
- Obtaining the necessary funds and personnel to participate
in the scoping process and prepare EISs;
- Integrating the Federal process into state reviews; and
- Determining lead and cooperating agencies.
Because NEPA has resulted in both benefits and procedural
problems, we believe that the EIS process as promulgated by the
CEQ regulations should be reviewed and minor modifications
considered in either the CEQ regulations or EPA's procedures.
With respect to the procedural problems, I foresee EPA's role
in the 1980's as helping to streamline and improve the
process. Our goals are to reduce the costs associated with
preparing environmental analyses and to expedite the
environmental review by focusing on significant issues and
early coordination with other Federal and state agencies. I
would liKe to address some of our efforts in these areas.
We are trying to reduce delay through creation of categorical
exclusions. EPA is preparing rules which will categorically
exclude from the NEPA process certain projects pre-determined
to have minimal environmental impacts. An example of a project
which would not normally require an environmental review is
rehabilitation of existing sewer lines in small communities
(3500 or less). I believe other agencies are considering
similar initiatives for their programs.
We are also concentrating on preparing areawide assessments.
Region III, for example, has initiated an Areawide
Environmental Assessment Process for New Source coal mines in
West Virginia. The process will minimize the time and effort
necessary for the environmental review and processing of NPDES
permit applications. Under the process, existing environmental
data is used to identify areas with significant resources which
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are sensitive to new mining. These areas are subjected to the
most intensive environmental review under a permit
application. For areas identified as less sensitive to New
Source coal mining, there is a less comprehensive environmental
review. In many cases, applicants can shorten the review
period by submitting necessary resource specific data and
proposed mitigation with the permit application. The process
has yielded three products: an Areawide Environmental
Assessment for West Virginia, seven basin-specific Supplemental
Information Documents, and a series of 1:24,OOO-scale overlay
maps for the seven study area.
Another way in which we plan to expedite the EIS process is by
preparing more programmatic EIS's. For example, Region V is
preparing a generic EIS on wastewater treatment planning for
rural lake communities. The EIS will address techniques for
detecting pollution problems and alternatives to sewering and
building conventional treatment plants. The environmental
analysis will focus on innovative and alternative wastewater
treatment such as:
- Repair and upgrading of existing septic tanks and
filter fields;
- Water conservation; and,
- Use of cluster systems (Multi-family filter field
located in areas of good soil).
I would like to point out that this generic EIS is an outgrowth
of individual EIS's prepared on 7 rural lake projects. The
Region V team responsible for these EIS's received the
Excaliber Award, which is given annually by Congress to Federal
employees for outstanding service. The techniques that the
team developed would save billions of dollars in project costs
and substantially reduce the environmental impacts for these
types of projects.
EPA is making a greater effort to use the NEPA environmental
review process to integrate the regulatory review for
permitting requirements. This method would save time and money
by consolidating the environmental review for the required
permits and involving other permitting agencies early in the
process. There are a number of ways in which this is being
done. For example:
- We are currently negotiating a Memorandum of
Understanding (MOU) with the Department of Interior to
coordinate EPA's National Pollutant Discharge
Elimination System (NPDES) permitting with Interior's
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Outer Continental Shelf oil and gas leasing process.
The MOU would formalize EPA's early participation in
Interior's environmental review process. From the
information obtained in the environmental review, we
would be able to develop the appropriate NPDES permit
conditions early in the lease-sale schedule. Our
Consolidated Permit Regulations allow us to develop
permit conditions and issue general permits for
certain categories of discharges before a sale. As a
result of the MOU and the authority under the
regulations, EPA would be able to publish final NPDES
permit conditions at the time Interior publishes the
final notice of sale. This approach would save a
substantial amount of time and eliminate a lot of
duplicative and costly analysis.
- We are also focusing on integrating the environmental
review for the new source NPDES permits with the Corps
of Engineers' 404 permits. For EIS's prepared on
projects where both a 404 permit and an NPDES permit
may be required, emphasis is on identifying the
environmental issues relating to both activities
during scoping. Attempts are being made to get both
the Corps, as the 404 permitting agency, and EPA, as
the NPDES permitting agency, to focus on issues and
alternatives early in the project planning. Where 404
permits are required, the environmental review would
address the selection of disposal sites, including:
- analysis of alternative discharge sites;
- identification of preferred sites with
conditions for discharge; and,
- any additional data necessary for a
decision on a final site.
The advantage of this approach is that preferred discharge
options are identified early in the planning process.
Furthermore, applicants are able to determine which
alternatives are likely to be acceptable to both agencies and
under what conditions; also, what additional data may be
necessary for the permit applications. As a result, the
project should move quickly through the federal permitting
process.
These are some of the efforts that we are undertaking to
expedite and streamline the EIS process.
My remarks so far have dealt with EPA-prepared EIS's. I would
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lifce to direct attention now to some of the efforts that EPA
will undertake in the 1980's to assist other agencies in
preparing EIS's.
One area where we plan to provide more assistance to agencies
is in the scoping process. EPA strongly supports scoping as a
means to expedite the environmental review and use federal
resources (dollars and staff) more efficiently. We believe
scoping also leads to better decisions because it helps
agencies focus their attention on the really important
environmental issues.
To assist the parties involved in scoping, we are preparing
scoping documents on a number of projects, such as:
o Coal conversions
o Disposal of hazardous wastes
o Small hydroelectric projects
o Railroad mergers
o New coal port facilities, and
o Oil shale development
The documents will focus on key environmental issues and
mitigating measures. We hope that these documents will help
parties avoid some of the conflicts that have occurred in the
past during scoping.
In the coming years, EPA intends to participate more as a
cooperating agency. In the past, fiscal constraints and other
priorities limited our participation in the preparation of
other agencies' EIS's? however, our FY-82 budget does provide
some funding which will allow us to function more fully as a
cooperating agency on major energy and industrial projects. We
believe that this cooperative effort is especially effective in
expediting projects requiring an EPA permit.
EPA has also set up a Priority Project Tracking System. This
system was developed by our Permits Coordination Group to
monitor selected major energy projects. Under the system,
deadlines are set for permitting and environmental reviews.
Our goal is to ensure that the permitting process proceeds at
an orderly pace and that environmental problems are identified
early enough to avoid delays.
Finally, we are undertaking a mitigation study in which we
examine the mitigation policies and practices of other federal
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agencies. By studying how other federal agencies apply
mitigation, we hope to pinpoint the strengths and weaknesses of
their approach. We are contemplating using this knowledge to
develop a comprehensive document which can be used by EPA and
other federal agencies in determining mitigating practices for
particular activities. The first stage of the study, just
completed, focuses on mitigation within the Forest Service,
Fish and Wildlife Service, and Federal Highway Administration.
The study will later be expanded to include other agencies.
I have been expounding at length about EPA's experiences with
NEPA and what our role will be under this statute in the
future. I would like to conclude with a few general remarks
about NEPA and any potential revisions of this statute.
I believe that NEPA is one of the most significant pieces of
environmental legislation to come out of Congress in the last
15 years. In the last 10 years, federal agencies have made a
tremendous effort, to respond to this statute. Based on those
years of experience, we must now consider what changes are
needed to improve further the NEPA process. We must assist CEQ
in the review of its regulations and exert the effort necessary
for change.
In the coming years, those of us in the federal government will
be seeking to achieve the mandates of NEPA in ways which are
commensurate with Administration policy. With a creative
approach, I am sure we can achieve harmony. In this way, I am
confident that NEPA will continue to play an important role in
formulating agencies' decisions.
Thank you for the opportunity to speak to you today. Are there
any questions?
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"NEARER TO THE HEART'S DESIRE: FINE-TUNING NEPA"
Lance Wood, Assistant Chief Counsel
Environmental Programs, Office of the Chief of Engineers
U. S. Army Corps of Engineers, Washington, D.C.
It's always a pleasure for me to attend a conference like this
of my fellow environmentalists. I've noticed over the years,
as I have attended more and more such conferences, that if you
listen carefully and watch, these conferences demonstrate, in
many subtle ways, how thoroughly institutionalized
environmental ism is now! This is especially so in the Federal
Government by virtue of numerous statues and some relatively
new agencies, such as the EPA and CEQ.
However, I sometimes find that to maintain my own level of
interest, when I have a chance to speak at a conference like
this, I like to play the roll of a gadfly to try to stimulate
some discussion and raise some questions, even though I fully
well realize that, undoubtedly, many people will disagree with
some, or all, of what I am going to say.
With that role in mind, I'd better give sort of an exculpatory
disclaimer to protect my agency because I have not had my
extemporaneous remarks reviewed by anybody in the Corps of
Engineers. Sort of like a general a couple of days ago, as I
recall. I want to point out that everything that I say here
will represent my own views of the moment. I'm always willing
to learn and change my views and they do not necessarily
represent the views of the Department of the Army, the Corps of
Engineers, or our Chief Counsel. There is a long list but I
will stop it there. That sort of disclaimer gives me a heady
feeling of freedom so I can say more or less what I want to,
within some limits, though I'll try not to be too outrageous.
First, though, before I start talking about these questions
that pertain to NEPA and the EIS process, I want to very
quickly give a little introduction to those of you who don't
know very much about the Corps of Engineers. Now what is the
Corps of Engineers? Many of you have had little or no
experience with it. People don't always know that we are sort
of a bifurcated agency, i.e., we are half military (military
construction for the Army and the Air Force all over the
world); we are half civil works (building water resource
development projects), and also in the Civil Works Directate,
conducting a regulatory program, giving permits before anything
can be done in practically any water of the United States now
under federal jurisdiction.
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many people are puzzled as to why a division of the U.S. Army
should have any water resource development or regulatory
responsibilities. The answer is simply a matter of history.
In the early days of this Republic, the Congress and the
President saw a need for engineers to build the national road
and to start developing our rivers and our ports. The only
engineers available were those in the Army, especially those
produced by that fine engineering institution, the U.S.
Military Academy at West Point. It was founded by the Corps
and sustained by the Corps for all these years; and visa versa,
of course. And Congress has never seen any reason to switch
for obviously good reasons. That probably explains why the
Corps of Engineers has a small but very effective historical
division. We really dol We have a few historians in our
little historical division. An agency that was spawned and
exists by virtue of history, such as we do in some sense,
logically would have an historical division. However, when I
started reading the monographs and publications of our
historical division, I found that even a Corps employee such as
myself was surprised by some of the remarkable things that they
have turned out.
Now, offically speaking, the history of the Corps begins in
1775 with the Battle of Bunker Hill, but the Historical
Division has shown that its history, in fact, goes back far
beyond that. In fact, the origin of the Corps, they have
proved, are shrouded in the mists of pre-history - the stuff of
myth, epic and saga. For example, one of the historical
divisions' monographs has proved that it was the Corps' Civil
Works Directate which diverted the great river with which
Hercules cleansed the Augean stables: in ancient Greece. Some
say that when the water resources work got a little sparce
during one period the Corps built the great pyramids of Egypt.
I don't say that our motto is "keep busy." Some people
maintain that, but it obviously is not true. But that is
clearly disproved, in fact, by the monograph on the pyramids.
They had many useful functions which we have just forgotten
about over the years.
The most interesting monograph was by the Hebrew studies
division of our historical division, because they managed to
find an old previously unknown version - the original version
of the book of Genesis - and their translation from the Hebrew
shows that it really goes like this in the first chapter: In
the beginning, God created heaven and earth; and the earth was
without form and void, and darkness was upon the face of the
deep. So God created His construction and engineering agency-
the Corps of Engineers, and God said, "Let there be light." So
the Corps of Engineers constructed great hydropowered dams with
great dynamos generating electricity - and there was light.
God saw the light from the hydropowered dams and said, "This is
very good." That was the evening and morning of the first
day. And God said, "Let there be a firmament in the mist of
the waters and let it divide the waters from the waters." So
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the Corps of Engineers built flood control levees, and it was
so. And God called the firmament Heaven, the evening and
morning of the second day. And God said, "Let the waters under
the Heavens be gathered together and let the dry land appear."
So the Corps received a supplemental appropriation and built
flood control dams and it was so....
Now, I'm going to stop there, even though the book of Genesis
continues. In our translation, it becomes tragic soon
thereafter because much of the creative work that Jehovah and
the Corps of Engineers were going about in partnership was then
enjoined for lack of an adequate Environmental Impact
Statement. We call that the fall from grace, or original sin.
There are at least two controversies, however, on which our
historical division is still working. The first one is, is it
or is it not true that it was the Corps of Engineers which
built the Colosseum and the Circus Maximus in Rome where devout
environmentalists were fed to lions? NO.1 They proved that is
not the case. The other question is , "What is the explanation
for the great flood of Noah?" Well, our historical division
has shown that it was a dam failure that caused the flood, but
that dam was built by the Bureau of Reclamation.
All right, enough of this madness. We came here to talk about
NEPA and the EIS process. So, of course, I have to begin by
stating what is very obvious: the Corps of Engineers feels
that the NEPA process and the EIS process are very good
things. They are necessary and desirable parts of our planning
process. We have thoroughly institutionalized NEPA within the
Corps of Engineers for major construction projects, civil works
or military. With the long lead times involved in Federal
projects we can obviously benefit from the careful
environmental review such as that required by NEPA. It ensures
proper consideration of all alternatives and all significant
potential environmental impacts. But, as I have said, I don't
believe that I need to be here in order to conduct a sort of
cheering section for NEPA. I don't think NEPA needs a cheering
section. It's thoroughly institutionalized; it's firmly
established and supported, as Ms. Nord has pointed out, by the
Reagan administration. So my subject is,"What are some
remaining problems in NEPA? How can we fine-tune NEPA to make
it work even better and be more valuable than it is at
present?"
Now, if I were to begin my remarks by talking about Corps of
Engineers construction projects, either civil works or
military, I might be accused by some unsympathetic and unkind
people of special pleading. Now, I reserve the right to do
some "special pleading" later, or at least to say some things
that might be construed as special pleading for the Corps' own
difficulties in our construction projects. But, let me begin,
instead, to clearly establish my bona fides here as an objective
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observer of all this. I will express first some of the
concerns which I hear week in and week out from private sector
applicants for Corps of Engineers permits under Section 10 of
the River and Harbor Act of 1899 for any structure in, or
affecting, any navigable water; and Section 404 of the Clean
Water Act, for the discharge of dredged or fill material into
any water of the United States subject to Federal
jur isdict ion.
To begin, I'll speak only from the perspective of permit
applicants and I will not necessarily present my own
prejudices. But, when I try to explain how these private
sector permit applicants feel about the NEPA process and the
EIS requirement, I'm going to be quite honest with you. They
are very hostile to it sometimes; frequently, in fact, they are
very fearful of it. Why? When we environmentalists here know
what great things NEPA and the EIS requirements are? Well, I'm
afraid that, in a sense, statistics tend to tell the story of
why so many private sector applicants for permits can be
somewhat suspicious to say the least. That is, when you
realize that the average time it takes for the Corps of
Engineers to process a permit application that does require an
EIS is 36.1 months, and the average time it takes the Corps of
Engineers to process a permit application that does not require
an EIS is 4.2 months. Now, that is a noteworthy contrast and
the permit applicants are fully cognizant of that. There is an
obvious caveat here - the Corps of Engineers only requires an
Environmental Impact Statement for something less than 1% of
the vast number of permit applications that come in yearly to
the Corps, and those cases tend to be the more difficult ones.
They are either controversial, by which I only mean that,
frequently, there is some party that opposes this permit and
that party has enough money to hire at least one lawyer; or
they are projects where there are real environmental questions
to be resolved and alternatives to be discussed. Nonetheless,
despite that caveat, from the parochial perspective of the
private sector permit applicant, when he realizes that the
average length of time it will take him, if an EIS is required,
is more than 3 years, you can understand that, with money
costing what it does nowadays; with the stability of financing
being something less than like the rock of Gibraltar; with
changes that take place in every aspect of this gentleman's
operation in 3 years - in fact, sometimes people retire and go
out of business before their application is resolved; some
people die - you know you can understand that 3 years is a long
time. That is the point.
Now, I'm going to tell you a story that may sound a little
outrageous, but I assure you that it is completely true. It
points out in graphic terms the feeling, the heat generated by
our requiring what the law seems to require, that a permit
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applicant be subjected to, and should complete, the EIS
requirement in processing a permit.
In December of 1980, we were in the transition period between
the Carter administration and the Reagan administration and I
was invited as the only attorney to attend a big meeting at the
Office of the Assistant Secretary of the Army Civil Works. We
call him the ASA(CW). He is the civilian boss of the Corps of
Engineers; the military boss is the Chief of Engineers, and for
the military side of the house, of course, the Chief of Staff
for the Army. But, this was the Civil Works side because this
was a permit matter and the ASA(CW) was our political boss.
The subject of the meeting was a permit case. A bunch of
private citizens in this country and some corporations wanted
to develop an oil refinery in a Southern state which shall not
be identified. They thus needed one or more Corps of Engineers
permits because they had to have a pier for the ships to come
in and off-load the oil. They needed a pipeline as well. They
needed fill material for these things, structures in navigable
waters. They needed Corps of Engineers permits. The question
the meeting was concerned with was, "Will the Corps, or will
not the Corps, require this permit applicant to do an EIS; that
is, will we do an EIS for this permit application?"
Now the District Engineer, who is the first level of
responsibility in such a question, had noted that the state
government and the local government and practically everybody
of political standing in that state was strongly supporting the
granting of the permit and the building of this oil refinery.
It had all the necessary water quality and air quality permits,
but, on the other hand, land owners in the area, including some
wealthy land owners with large estates, didn't like the idea of
an oil refinery in that neighborhood because, no matter how
good we make oil refineries, they are just not what you want to
be next door if you have a big rustic estate in a rural area.
People in such areas like to maintain a quality of life there
as they know it. Now they are suspicious of things like oil
refineries. You can all understand that. So when the District
Engineer put out his notice saying that he tentatively did not
think an EIS was required in this case because all the
environmental questions probably had been resolved and there
would be no significant impact on the environment, the local
environmentalists got together and came for to assistance to
the Deputy ASA(CW), who was sort of the environmental watch
dog, unofficially, for the office of the ASA(CW). They talked
with him and he wrote a letter and sent it down to the
District Engineer (a very extraordinary action) saying, "Mr.
District Engineer, I've heard about what is going on here. My
Goodness, we're talking about an oil refinery. Oil refinery =
EIS, you know. Who would think seriously of giving a permit
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for an oil refinery without an EIS?" The letter strongly
implied that the District Engineer should write an EIS for this
oil refinery.
Well, this upset the applicant and so he requested a meeting at
the office of the ASA(CW) in Washington. I got to attend the
meeting as the one lawyer present. The flagship, you might
say, of the meeting was a very senior senator. To understand
the story, you must remember he was a Republican, a senior
Republican senator - he was the leading light of this meeting.
The Congressman from the district, the Chamber of Commerce
representatives, and the representatives from the oil refinery
company and so forth also were present. They had a large
delegation of at least 20 or more on that side; and on our side
we had the ASA(CW), his deputy, the District Engineer, and me.
The meeting was a remarkable meeting and it was long.
We started with the Senator and the Congressman and everybody
else giving a presentation to explain why, if we required an
EIS in this case, we might as well be denying the permit
because it would take a long time to write the EIS and a long
time to resolve the questions of adequacy. They knew this from
prior experience in building other oil refineries. Supposedly,
they said, if you require an EIS it will kill our project. We
need this oil refinery. We need jobs in our community. You
can imagine the arguments which they presented very
forcefully. The ASA(CW) spoke and he said, "Well, look, we're
not at fault here Senator. We don't write the laws; that is
done in Congress. But NEPA requires, from our point of view,
an EIS for this case." Then they all turned to me and said,
"Mr. ASA(CW) you've made a legal determination there. What
does your lawyer say about that?" They all looked at me and I
did the lawyerly thing in such a situation. I'm sure those of
you who deal with lawyers see it every day. I said, "Well, on
the one hand, and then, on the other hand." "Well, on the one
hand, the decision of the District Engineer will decide whether
an EIS is needed. Here, in this letter that we have from the
deputy ASA(CW), is some interesting, nice advice, but the
delegation has been made to the District Engineer to decide, in
his discretion, whether or not an EIS is needed in this case.
I'm quite confident that the Deputy ASA(CW) did not intend to
interfere with that discretion since he has not chosen to
remove the delegation. But, on the other hand, I have to
advise you gentlemen from the oil refinery that, the way cases
stand, the way the law stands in a situation like this, it is
safer to write an EIS because you will be subjected to a more
stringent, difficult standard of judicial review when these
environmentalists sue, as they undoubtedly will, if you were to
be granted a permit with only an environmental assessment and a
finding of no significant impact. Then you just might be
overturned by the federal courts for failure to comply with the
procedural aspects of NEPA." They heard that and they looked
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at each other. Of course, I had done what I had needed to do.
They were thinking, well, on the one hand; then, on the other
hand. They were trying to figure out what I had said.
Then they redirected their fire at the ASA(CW) and his deputy -
they were the lightning rods again. I had carefully avoided
being a lightning rod myself. What happened then was truly
remarkable and I've never seen anything quite this interesting
in my years in the federal government. After the ASA(CW) had
finally said, "Alright, I have explained to you, Senator, and
Congressman," and he addressed them all, "that you need an EIS
in this case. We can think about it, but that is our
conclusion ." So the senior Senator stood up and he advanced
toward the ASA(CW), who also decided it might be a good idea to
stand up. He did stand up and so the two of them faced each
other and the Senator reached out to shake the ASA(CW)'s hand.
They did shake hands but, as they were shaking hands the
Senator said, "I have listened to you for well over an hour and
a half now and I'm not going to waste any more of my time with
you." He said, "You are a lame duck; you are a 'has been'.
You and your people have not done any good for this country in
your time here. You know, it's good riddance to you. Go on
back to New York where you came from." He said, "You know we
need this refinery; we need these jobs. You won't help us out,
so I've got nothing else to say to you. Good riddancel" Then
he walked over to his deputy, the Deputy ASA(CW), who is a
smaller man than the Senator, and you could see the deputy sort
of brace himself for the storm. "And as for you, sir," the
Senator said, "the same thing applies to you, and doubly.
Aren't you another one of these political appointees? Aren't
you with this discredited Administration that is about to be
swept out of office?" The deputy said, "Well, sir, I am with
the present Administration". He said, "That is what I
thought. Another one of you political hacks! Go on back north
to where you came from. Go! Good riddance to you!"
Then the Senator began his majestic march toward the door,
followed by the Congressman and all the others, like destroyers
behind the flagship, but unfortunately my chair was between the
Senator and the door. When the Senator reached me he stopped,
with an afterthought, and shook my hand and said, "Mr. Wood, I
realize that you are not a political appointee, you are a
career employee of the Corps of Engineers and so you have some
credibility in my eyes. But I'll tell you one thing, sir. I'm
not entirely sure where you came down on this question, but if
you do agree with those guys then you ought to go, too!" Well,
we all were a bit shocked and the Senator went sweeping out
majestically with everybody behind in a flurry. The ASA(CW)
had a thought and he went to his desk and grabbed a little
package of pecan nuts that the Senator had given him as a
little gift, as a token of his southern state. He ran after
the Senator and
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5?lch.H \V%h^°ry.toryTb:ff tfh'«. «V be6Cae ,V.U 'of truth
too. The conclusion I'm getting at is that many private sector
permit applicants are not entirely happy when you tell them
that their permit application must be accompanied by an
Environmental Impact Statement. I'm going to be so bold as o
suggest that maybe, just maybe, they have a point.
The question I want to address to you is, though I can t answer
it now (I'm not going to try to answer it now), how can we
expedite this eis process? How can we be sure that we can have
EIS's without fierce resistance? How can we give a greater
incentive to District Engineers, for example, to conclude,
yes-let's write an EIS - so the District Engineer can feel
that, if he does, he will not effectively be denying the
permit. This is an allegation made by the permit applicants,
but goodness, you have to consider that after you hear it
dozens of times from permit applicants.
Now the CEQ/NEPA regulations presently have two provisions, at
least which allow EPA, and in other cases CEQ, to expedite the
NEPA process in certain defined ways. I think we need to take
a careful look at that and see, first, can we expand upon that,
go into more detail, have a more expeditious treatment of
permits and all the laws that inter-relate in the EIS process?
Second, can we perhaps delegate to federal agencies greater
responsibility to establish their own expeditious or expediting
procedures so that it doesn't take so long to prepare EIS's?
We have some ideas in the Corps but I'm not going to surface
them now so that there will be holes at this point, but I do
think that is a subject which deserves some attention during
the next day or two as you attend this meeting.
Now, to go to a few specific problems, just to give you a few
specifics to work with, let's take the case of a pipeline or an
electric transmission line or a road which is not being built
by the federal government but is being built by the state or a
private company or whatever. If this pipeline or transmission
line crosses any stream, any water of the United States subject
to federal jurisdiction, then they have to get, as a general
rule, either a Section 10 permit if it crosses a navigable
water; or a 404 permit if, as they normally do, they have to
put fill material in practically any water subject to federal
jurisdiction. Now during the Carter administration we had a
big dispute over this. The CEQ of the Carter Administration
said emphatically, "Corps of Engineers, whenever you have a
case like this, there may be a 500-mile long pipeline that may
cross one tiny stream, but before you can grant that one
permit, Corps of Engineers, you have to write a full scale
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Environmental Impact Statement on all the direct and indirect
environmental impacts, not only of the stream crossing but of
the entire length of the pipeline. What is the gas going to be
used for at the other end? What lands will it cross in its
500-mile length?" We thought that this was a little extreme
and we did not agree.
The CEQ, during the Carter Administration I emphasize, was very
adamant that we had to write these EIS's for the entire length
of the pipeline, the transmission line, or the state road. But
if you read the CEQ/NEPA regulations, you can see that they had
some sort of more or less reasonable case for contending that
the definition of major federal action includes actions with
effects that may be major and which are potentially subject to
federal control and responsibility. If the test is what is
"potentially subject to federal control or responsibility,"
that's extremely broad. Obviously this pipeline was subject to
Federal control because they could not exist without a Corps of
Engineers permit.
If you look at the CEQ regulations' definition of effects it
includes, "Indirect effects which are caused by the action and
are later in the time, or further removed in distance, but are
still reasonably forseeable." So the CEQ said, "But for the
Corps of Engineers permit to cross this water, there could be
no pipeline, no transmission line. It's potentially subject to
federal control, so you've got to write a full scale EIS on
that. Well, one of the indirect effects of being able to
cross a body of water is that you can have a 500-mile long
pipeline or a transmission line and, thus, we have proved that
you must write a full scale EIS on the entire length."
Now this dispute involves much more than simply the matter of
writing an EIS because, remember, the Corps' public interest
review is, in part, based upon what this EIS reveals. So, we
would be making our permit decision on whether or not to grant
the permit for this water crossing; not on the basis of the
effect of the water crossing, per se, but on the basis of
whatever that EIS revealed about where the gas came from, where
the electricity is going to, what happens over the 500-mile
length, what lands will be crossed, i.e., Indian reservations,
what is going to be crossed. So you see, it is an extremely
important question; it was not a purely technical debate.
We resisted, as I say, and this led to the case of the
Winnebago tribe of Nebraska versus Ray, where the 8th Circuit
Court of Appeals agreed with the Corps of Engineers, and
disagreed with the CEQ, and ruled that the Corps need only look
at the water crossing and not write a full scale EIS on every
aspect of the pipeline or transmission line. But this is still
a v-ery
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open question because that case was decided on the basis of the
oLd CEQ/NEPA guidelines. The Court specifically said the case
was not decided on the basis of the regulations. So it's still
an open question that has not been resolved/ though the Corps
is at present relying on and following Winnebago Tribe of
Nebraska vs. Ray.
I'll quickly mention a related problem. It is the generic
problem, as you can see, where there is a very small federal
handle. Frequently, it is a Corps of Engineers permit and that
federal handle is used, or can be used, to lead to a full scale
EIS treatment and major federal involvement - in fact,
potential federal control of the entire activity. Now, we
thought that was unreasonable in the case of the private
pipeline, transmission line, or road, but it is a more
difficult question, isn't it, when you are talking about an
electric power generating plant or a big industrial facility or
a big oil refinery where there clearly would be no EIS
required, very little federal NEPA involvement except for the
Corps of Engineers permit for the pipeline, the pier, the water
crossing, or whatever the case may be. Well, one approach to
this question was taken by the 5th Circuit Court of Appeals in
Save the Bay vs. Corps of Engineers. This court said that in
very limited, particular and circumscribed circumstances these
the Corps did not need to write an EIS on the whole big
chemical plant, but only concentrate on the fill material
around the effluent pipe. But on the other hand, that is a
very restricted decision. I am not at all sure that that is
good law, so these are matters that need to be thought about,
need to be addressed, and I am sure that our CEQ is going to be
thinking about these things. Who knows, it may even be
addressing them. Well, I'm sure they will be addressed to
whatever extent they can be addressed by the CEQ/NEPA
regulations. That is a very separate question. I did not mean
to be sarcastic there at all. The CEQ/NEPA regulations can
only do a limited amount to change the minds of federal
courts. The federal courts ultimately determine what NEPA
means. The CEQ/NEPA regulations are very persuasive evidence
to which the federal courts give deference in deciding what
NEPA requires, but I'm not trying to shift responsibility to
CEQ. They can be very helpful, but I don't maintain that they
can ultimately solve all the problems of NEPA. I'm afraid that
they certainly cannot. The federal courts are ultimately
responsible and the Congress, of course.
Alright, just a few more observations about matters that affect
both permit cases and federal projects, specifically Corps of
Engineers projects. We had an interesting inquiry the other
day from the House Armed Services Committee. They asked, "Why
did the Department of the Army spend $300,000.00 to write a
full scale EIS on the ongoing operation of the US Military
Academy?" "For what possible reason," they asked, "do you need
-------
environment in the long run; favorable,
r£V%oTse ^oUheless?they «Ked my advice. 'Was this
? ea ally required or not? When I started looking into and
legally q ^ not afc sur:e that I would have
thinking ab , asked by the Commandant of the Military
fcldlmy - thattSfUdemy should write an KB. But I can
certainly understand why he might have done It.
^ Q anain Look at the definition in the CEQ/NEPA regulations
nf maior federal action. It seems to mean practically any and
every federal action, and in some cases a failure to act can be
a major federal action. These actions are specifically defined
fo include new and continuing activities. Then when you look
at the definition of "significantly", you find that it is
o*rremelv inclusive and also very subjective. So, as a result,
Sou have what I believe is an interesting problem. That is,
»nd I'm not saying that this is necessarily what happened in
?he case of the Military Academy, but the problem that I wanted
address is the writing of defensive EIS's. EIS's that
really may not be necessary from any common sense point of
view, but which are written at great federal expense for
defensive reasons.
As my collegues have suggested from this rostrum today,
sometimes people bring lawsuits based on EIS's, not because
thev are interested in the environment, but because they want
to stop the action. Consider the forces that are at work upon
a federal decision-maker deciding whether or not to write an
eis It may really not be necessary from any common sense
point of view, but he has a dilemma. If he says, "Yes, write
the EIS, despite whatever it may cost," it will cost a certain
amount of money, but it is not his money. It will lead to some
time delay, but frequently it won't lead to any delay at all
because many actions are continuing actions for which there is
no injunction outstanding. Many other actions have very long
planning lead times so there is no delay for them. So there is
a big 'up' side, as the cliche' says, to writing the EIS. Well
there is not too much 'down' side, if he decides not to write
the EIS, there is a very real probability that, in any half way
doubtful case, if anybody brings a lawsuit, his activity can be
enjoined. That is a terribly disruptive and disgraceful thing
to happen to your federal official - to say that he made the
wrong decision and he has been enjoined. So federal officials,
I believe, tend to err on the side of caution. If there is any
doubt, and there is almost always some doubt, they write an
EIS.
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Now, this may not be a bad thing. After all it may be that the
costs of doing Eis's, even maybe a few unneeded EIS's, are
balanced out by the benefits of those EIS's which otherwise
would not have been written but for this defensive EIS
situation. Also, we realize that there may be a valuable
economic pump priming effect here. We know that since 1969, a
major U.S. growth industry has been consulting firms that write
EIS's. Nonetheless, I will say that we are moving into a
period of austerity where the federal government does not have
enough money to fund everything that might be nice or might be
useful for defensive reasons. You've got to remember that when
you spend $100,000.00 on an EIS here, and a half million
dollars on an EIS there, as Senator Dirkson used to say,
"Before long, that adds up to real money." I'm convinced that
NEPA and the CEQ regulations can be fine tuned to reduce the
need for writing defensive and unnecessary EIS's. I think this
is another subject for discussion today and for months ahead as
we re-examine the NEPA process as implemented by the CEQ.
Now, I am going to move, just briefly before I close, to a
matter which I admit some unfair and unkind people could regard
as special pleading. I'm going to tell you a little bit about
the most recent learning experience the Corps of Engineers had
with a Corps of Engineers project regarding NEPA. That is sort
of a euphemism. It was really more like shock therapy. That
was when the 5th Circuit Court handed down a decision on July
13, 1981, on the Tennessee-Tombigbee Waterway. Now, almost all
of you have probally heard of the "Tenn-Tom" project. Some of
you may even think - I hate the thought - that maybe the
project should never have been authorized. Some of you may
even think that construction should not have begun. I don't
feel that way. I think it a very good project and it is more
than 60% completed at the present time. But, you need a little
bit of history to understand how we ended up with the recent
5th Circuit Court opinion.
The "Tenn-Tom" project is a big project. It will stretch 253
miles in length. It will connect the Tennessee River with
another existing major waterway, the Black Warrior-Tombigbee
Waterway, which then flows on to the Gulf of Mexico at Mobile.
It's the biggest civil works project the Corps of Engineers has
ever undertaken. It is going to cost over one and a half
billion dollars before we are through. It was authorized in
1946 and not until 1969, the year that NEPA was enacted, did
Congress appropriate money for pre-construction planning. So
the Corps of Engineers generated an early Environmental Impact
Statement, published in 1971. It was based upon the best plans
and information available at the time. But remember, the
Project had no advanced engineering and design; we only had
what you might call the rudimentary plans for the project.
Congress debated this EIS and debated on whether or not
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c 3: _ chniiid be appropriated. And having
S£Ur.SCtt"e" EIS .nS the ^"fer'e
?unnUgUbyd dfr eft Ion" of Congress, building the "Tenn-Tom'
Waterway.
i q*71 p-rc oromised thcifc thscs would b© GXtsnSLVS
Now the 1971 1p we went along because it takes a long
!nViTomlnuUd a«i" long —Jor waterway. It is a project
?«f eLntly compared to the Panama Canal. It is a big
which is fr q had alnvost immediately, the
Sui;C«» U«»"twhich'tested the original EIS. Judge Ready,
first N£.f iudqe, heard all the evidence in a hearing,
the record, an3 concluded that the 1971 EIS was
under NEPS.. The 5th Circuit of Appeals Court
adequate ^nder ^ adequacy of that 1971 EIS. The
Supreme*1 Court declined to hear the case. Hence, since we had
supreme Corps of Engineers proceeded to conduct
all3the" environmental studies we \ad promised. In 1975, the
f-rJ 9 bia thick volumns, a whole bookcase of supplemental
• rpDorts. were ready. The Corps had to decide
either to file these things as a supplemental EIS, 9 volumns
worth, or some aspect thereof, or not.
,t ii t want to point out here - don't think I am expressing a
oersonal bias - I didn't even come to work for the Corps until
107* over a year after the decision was made, and I had no
environmental law responsibilities until a year and a half ago,
, after these decisions were made. So I am not simply
-justifying my own errors from hindsight when I say that the
r-nros of Engineers honestly decided in 1975 that these first 9
volumns of supplemental environmental reports had revealed no
cinn if leant environmental impacts that had not been adequately
addressed in the 1971 EIS. At that time the CEQ only had
Guidelines out to implement NEPA and those guidelines were very
permissive on whether or not you needed to file a supplemental
eis It was more or less whether you wanted to or not. So
thev concluded in 1975 that no supplemental EIS was needed for
the "Tenn-Tom" . When the next 9 volumes, for a total of 18
volumns, of further environmental studies became available the
Corps honestly drew the same conclusion again. We have done a
Lot of studies, but we have revealed no new significant
environmental impacts from this project.
Remember that the Corps was designing the "Tenn-Tom," openly,
as a showcase for NEPA. All the Corps' public relations
presentations said that we are going to make this the most
environmentally sensitive and responsible project in its design
and construction ever undertaken in the United States. We did
our best, in all honesty, to fulfill that promise which we made
to Congress and to the public. We had an independent board of
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environmental consultants that reviewed all the significant
plans. Largely at their recommendation, the Corps of Engineers
modified the design for this project and continued to make some
changes in the project. We had a rudimentary plan in 1971, but
by the time we were really deeply involved in doing the digging
years later, we decided to change some aspect of the project,
primarily to enhance environmental quality. For example, the
original plan had a perched canal for the midsection of the
project, a canal between two levees. The board of
environmental consultants said that it would be much better for
the environment if you changed that into a chain of lakes. It
will be good for recreation, fishing, and boating; it will be
good for fish and wildlife; it will be good for aesthetics; it
is, in every way, better. So we changed from the perched canal
to the chain of lakes largely, and primarily, to enhance
environmental quality. The environmental consultant board said
also, "You are going to need more land than the 70,000 acres
you guessed you would need in 1971. Why? Because that will be
a more environmentally responsible way to dispose of the
dredged material. You'll also have more recreation lands;
you'll also be taking more land in fee, so that you can then
have complete control of the fish and wildlife benefits
thereon, etc." So, largely and primarily to enhance
environmental quality, we acquired, not 80,000 acres as we had
projected in the original plan (70,000 project, 10,000
recreation), we went from 80,000 to 107,000 acres - not a vast
difference when you think of a project of this scale.
Other changes: we decided to make more cut-offs in the river
section for efficiency. Admittedly not entirely for
environmental reasons, but we proved in our supplemental
reports that these cut-offs would have no adverse environmental
impact - certainly no Impact not discussed in the 1971 EIS. We
had more knowledge as the years went on. We spent so much
money on environmental studies and we generated vastly more
knowledge.
All right, the Corps decided that they did not, as you recall,
have to file a supplemental EIS. To say in all frankness,
another factor that might have been considered in that decision
was that there was this first, long lawsuit on the adequacy of
the original EIS- the lawsuit between 1971 and 1974 over the
adequacy of the 1971 EIS. So for all I know (though I have no
reason, except speculation, to say that) the Corps may have
said, "Well, look. If we write a supplemental EIS we could
have another lawsuit on the adequacy of it, but since we are
n°t in any sense legally required to do a supplement, why
should we go asking for another major lawsuit like the one that
took so much money and time between 1971 and 1974?" All right,
no supplemental EIS was being prepared for the "Tenn-Tom". We
didn't think we needed to, legally, morally, or for any other
reason, but in 1976 there was a new lawsuit.
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This time it was filed by the Louisville and Nashville
Railroad. Part of the Family Line System, it is a big and well
funded outfit. This lawsuit was not based on environmental
concerns, it was based on authority questions. It was an
authorization lawsuit. They alleged that we did not have legal
authority to build the project in the way that we were building
it. However, any good lawyer, in bringing a lawsuit, throws in
every complaint he can imagine, even those of the barest
colorable validity. So they threw in a host of environmental
claims as well as many NEPA claims and Endangered Species Act
claims, Clean Water Act claims. The guts of the lawsuit was
over authorization. If you'll pardon my sounding cynical I
really don't believe the L&N brought that lawsuit because they
wanted a perfect EIS or were concerned about the environment
very much. They stated they were concerned about the
competition the waterway would provide - competition in an area
where the L&N practically has a trade monopoly. Well there
were many, many counts of the lawsuit and the first trial wa*
based on authorities questions. The L&N lost. The 5th Circuit
Court unanimously said the Corps had won another round Th*
real essence of the lawsuit, the authorities question, was
settled in favor of the Tenn-Tom project.
We had to go to the remaining counts, most of which looker!
very, shall we say, questionable in validity, to say the
least. The same trial judge had been dealing with thl
"Tenn-Tom" since 1971, Judge Ready was very familiar with Iht
case. He examined all the evidence and handed down a run no
which said clearly, " The Corps of Engineers aciain ^
everything any agency could possibly, reasonably do to protect
and enhance environmental quality. it had fully complied
NEPA. No supplemental EIS was needed and it hasn't qpato £ 5
the project improperly." He responded to all of the char?"
the many that the plaintiff had made. One, among man?n I
a very significant one from anybody's point of viel' atthlt
time, was the question of whether or not we need*** • ,
supplemental EIS. There were many questions murh m t a
contested than that. Then, surprise! Surprise" OnhL?^
day of July, when we were all expecting the 5th' n ,13th
to unanimously affirm Judge Ready again as thev ha** "rt
before, here comes a decision which is amazina wk twice
that July 13, 5th Circuit decision an* ™' hen you read
judge Ready's decision, you wonder if they were^nniff that
same fact situation, the same record, the sam^project 9
Now, there were many reasons for this which t
go into now. It would sound too much l i !a . 5Lnot ^omg to
rationalization, but I will say one thinn mu after the fact'
difference between what Judge Ready held and whaV* the® 5°^
to
at the
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Circuit Court held. That was what I believe to be, in essence,
a new rule that the 5th Circuit Court came down with in this
"Tenn-Tom" decision. That is this and I am going to quote it
(to summarize it), "You've got to write an EIS for an actLon
that is beneficial to the environment. A beneficial impact
must be discussed in an EIS so long as it is significant
Federal action. NEPA is concerned with all significant
environmental effects, not merely adverse ones." Well, this is
an interesting rule they had. In a case of many years before,
the Hiram Clark case, which had never been cited again so far
as I know, by anybody, which had been generally forgotten, they
had made an allusion to such an idea. You have to write an EIS
on an action which has no significant adverse environmental
impacts, but arguably significant favorable environmental
impacts. My goodness, they said that loud and clear on July
13.
Now, let me draw just a few conclusions from this remarkable
experience we had in the "Tenn-Tom" litigation. We were all
rather surprised that the core was decided on the need for a
supplemental EIS for the project. First, it provides evidence,
if I may say so, that under NEPA, to a considerable degree, an
agency's compliance with NEPA lies largely in the eye of the
beholder. In part, the outcome depends frequently on which
federal judge is evaluating the evidence. Judge Keady was the
one judge in this country most familiar with the project. All
of its impacts, he held, were in complete compliance with
NEPA. Judge Revely, a newly appointed judge to the 5th circuit
Court, held that we were very much in non-compliance. That is
what leads, in part, no doubt, to defensive EIS writing.
Practically any federal action can be characterized by some
federal judge or other (and always will be characterized by
opponents of that project) as a major federal action
significantly affecting the quality of the human environment,
requiring a full scale EIS.
Two, the rule of law which has been handed down now by the 5th
Circuit Court regarding beneficial impacts is, in my view, an
unwise rule of Law. To whatever extent the CEQ, by regulation,
can make clear that agencies do not have to write Eis's on
activities which have no significant adverse impact, but
arguably significant favorable impacts, I think it would be a
very good thing to do. Perhaps the other federal circuits will
show deference to the CEQ. Perhaps the Supreme Court will
resolve the question and we won't have to have so many
Unnecessary EIS's written, especially unnecessary supplemental
ElS's written, unless you find that actually there is some
significant adverse environmental impact.
Three, it seems to me that we may see before us now, though we
may be overreacting, a spectre of a new wave of NEPA lawsuits
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demanding that supplemental environmental impact statements be
written for practically any large scale project, because most
big projects this country undertakes, either in the private
sector or the public sector, take well over one year to design
and build. The "Tenn-Tom" will take well over ten years (more
like sixteen years according to present plans) to design and
build. There are always new design changes. Many design
changes are adopted between the original rudimentary planning
and the final design. There are always vast amounts of new
information coming in, the better the agency or the private
company does its job under NEPA, improving the design to
enhance environmental quality and generating new information so
that we know about every environmental impact and every
alternative. As we head down the pike, the greater is the
chance that a plaintiff group which simply wants to kill the
project will be able to get an injunction to stop the project
t0mCO!?piy rule of NEPA expressed in the
July 13, Tenn-Tom decision.
I point out another practical and very obvious danger. Once
the final environmental impact statement is filed under this
rule, especially once that final Eis has been held to be
adequate by one or more federal courts, we now have a rather
strong disincentive for the federal agency or the private
company or whatever to adopt any significant changes in desiqn
no matter how beneficial they may be from an economic,
environmental, efficiency, safety viewpoint, etc. That would
mean that if you adopt these changes in design, or if you
generate lots of new environmental information, then you mav be
legally required to do a supplemental EIS. In turn, that is
likely to generate a new lawsuit. If you do not file a
supplemental EIS, there can be a lawsuit to make you file one
even on purely beneficial impacts. If you do file
supplemental EIS, there can be a lawsuit on the adequacy of
that supplemental EIS. so we have a disincentive to aenPr^B
valuable environmental information and to adopt valuable design
changes in projects. yn
Now, I see that because we were so remarkably ahead of
this morning, I can either go on and talk about other v??*?
issues or I can let you get to lunch. I don't know how hn Lu
a show of hands on something like this so I'll rnmnpn„.
mention very quickly a few other things, and then let inn I??
go to lunch. u aii
First, the question of alternatives - i belio*
CEQ/NEPA regulations can be made more explicit anJthe
on the question of what alternatives reaiiv J;inely drawn
discussed. Consider the dilemma of a permit- have to be
wants to build any sort of industrial facilitv aPplicant who
he may have one piece of property, he mav havo ;L\., example,
¦* uave options on two
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pieces of property, but they are his two sites. Yet, when the
Corps of Engineers sometimes has had to write an EIS on an oiL
refinery case, people have insisted that we study dozens of
possible sites for that oil refinery. The applicant says,
"Yes, but I'm not interested in all of those refineries and
sites In Alaska. I want to build one down here in South
Carolina or somewhere." "No, we have to look at the sites in
Alaska." At least that's what some environmentalists say.
We obviously follow the rule of reason, but even our rule of
reason requires that, sometimes, a great number of sites be
studied. We have tried to address that question in our own
Corps of Engineers NEPA regulations. I am not entirely sure
the CEQ/NEPA regulations would support us on that point if and
when we end up in a good lawsuit.
In my view, the emergency provisions in the current CEQ/NEPA
regulations are really not adequate. They suggest that there
should be prior consultation during or before the emergency
with CEQ over alternative arrangements. I can assure you that
the Corps of Engineers is sometimes in the business of
emergencies. I mean, when we are fighting a major flood on
some dark and stormy night in Louisiana and you are about to
lose half the state of Louisiana and all the people and
buildings therein, the District Engineer rarely has the stomach
to make a phone call to try and find somebody from CEQ at home
to make alternative NEPA arrangements. So when you read what
we said on that point in our NEPA regulations you can see that
it is really different, to say the least, from what the
CEQ/NEPA regulations seem to say. We hope that that also will
be sustained if ever challenged in court, probably after the
fact.
Finally, I want to say one quick word about the referral
process because, in my view, the referral process can be
misused. There can be political game-playing in the federal
government with the referral process. After an agency has
fully planned a project and fully coordinated with every
interested federal agency, and all the other agencies have had
a chance to put in their comments and get their licks, so to
speak, at this activity, I question whether it is desirable
then - when this question is being given to Congress and has
been given to Congress for authorization purposes and
appropriation purposes - if it is reasonable to disrupt the
relationship between the agency and the Congress by extensive
Periods of referral, where one agency wants to refer this
Project at the last minute, superceding the effort of the lead
agency to refer the matter to the real decision-maker which
should be, and must be, the Congress. I realize that referral
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does have some ligitimate use, but I feel that we have to
fine-tune that provision as well, because under the way it is
written now it can be misused. I think we can improve on that.
All right, I realize that we are supposed to be subjected to
questions, but I do have the great advantage in that every
moment you delay in questioning and cross-examining me is one
less minute you have to enjoy your lunch, so I am going to
conclude. If anyone has any questions I will be more than
happy to address them.
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WORKSHOPS
EIS REVIEW WORKSHOP
Panel Members: Dr. Gerald Miller
Ms. Clara DeLay
Mr. Ted Bisterfeld
After an initial explanation of the EPA's rating system (see
appendix) and an assessment of the direction the review process
is envisioned to take under the present Administration, the
discussion was directed into the following issues submitted by
the attendees. Because the CEQ Regulations are so central to
the review process, whenever possible, these questions were
referenced to the appropriate Section of that document.
Section 1500.2(c) - Policy
Integrate the requirements of NEPA...so that all such
procedures run concurrently rather than consecutively.
Under the 1977 Amendments to the Clean Water Act, the Corps
of Engineers analyzes the Section 404 (deposition of
dredge and/or fill material) impacts in certain of its
EIS1s rather than in a public notice immediately prior to
facility construction. Since Region IV has generally found
this procedure to have merit, it was suggested that other
developmental agencies consider doing likewise. This
initiative fostered a great deal of comment —— both
positive and negative. Legitimate reasons were offered by
representatives from State DOT's and SCS as to why this is
difficult to accomplish; however, xt was also acknowledged
that a "worst case" scenerio for the various alternatives
could be developed which would highlight areas of
significant disagreements. Presumably, efforts could then
be made to either mitigate the adverse impacts or reach a
compromise on the selected alternative.
Section 1500.5(b) Reducing Delay
Interagency cooperation before the circulation of a draft
EIS has proven to be an excellent technique to avoid
adversary comments/delays on a completed document. The
question was posed as to how will this continue to be done
in the face of restraints on travel? The suggestion was
made to send a preliminary proposal to prospective
attendees/involved agencies to be followed up by a synopsis
of the actual scoping meeting for subsequent comment. Since
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formulation of at least a generalized plan is required for
any project, it was not felt that any
unnecessary/duplicative efforts would result from using
this approach. Regardless of reduced travel funds, EPA
Region IV hopes to maintain its scoping commitments through
more careful scheduling and use of less costly methods of
travel.
Section 1501.5 Lead Agency
Some interesting examples were discussed of
controversy/problems associated with which Agency would or
would not serve in the capacity of lead agency.
Ironically, there were examples offered of the same agency
having strong opinions both pro and con over what appeared
to be very similar types of projects. While all the
details involved in an agency's decision-making were
certainly not available to outsiders, the lead agency
concept is apparently often not as simple/clearcut as might
be imagined. From a perspective of overall environmental
protection, it was repeatedly mentioned that some
formalized program needs to be developed to solve this
dilemma. While a great many specific examples were
offered, no unifying principles were developed due to the
short time frame.
Section 1501.6 Cooperating Agencies
This concept had immediate appeal to most of the attendees
since it uses the broad expertise of the federal community
to such good effect. Numerous examples were discussed
where cooperation had yielded a product far superior to
that obtainable from just one agency. However, it was also
noted that with the present and forthcoming budget cuts
continued implementation of this procedure will become
increasingly difficult.
Section 1502.1 Purpose
As an initial premise, it was stated that an EIS is a torn
to assist in making better decisions, not just a pro fnrL
document to legitimize a previously made decision Whn«
no one seriously argued the contrary position mlrZ
comments revealed instances where certain of =*.'4. ®an"
felt this was in fact the case. This wa<* ttendees
generated strong and divergent y^a "J*
participants. However, since subjectivitv x.
important role in this regard, there w a a -u suc^ an
light shed on the topic. " W3S moIe he« than
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Section 1502.14 Alternatives
The question was asked, "How does EPA react to the absence
of any reasonable alternatives to a proposal"? That is, in
those EIS's where an objective is substituted for different
options. This question was appropriate since the tact of
preenptorily eliminating all options which do not meet a
predetermined objective was opined as becoming more
prevalent. Since the alternatives section is the heart of
the EIS, decisions should not be made which will prejudice
the final selection. However, if the entire process is
structured to achieve an objective, i.e., to nourish a
beach in front of existing housing or increase the carrying
capacity of a stream along a given reach, then the entire
spirit of the NEPA process is compromised. While everyone
acknowledged that alternatives were necessary, certain of
the participants indicated that they were familiar with
EIS's where uneconomic, unfeasible, etc., options were
culled prior to draft preparation. Hence, the lack of
alternatives may be more apparent than real. As would be
expected, EPA has guidelines for review of all types of
projects but handles each EIS on a case by case basis.
Section 1502.23 Cost Benefit Analysis
How development agencies spend their money legitimately is
the business of that particular agency; however, the EIS
should be expected to demonstrate that the environmental
losses are balanced by compelling economic and/or societal
gains. This was generally thought to already be the case.
Nevertheless, it was mentioned that post construction
studies to verify these gains would be worthwhile. Some
individuals also expressed concern over agencies
guidelines which require ar project to generate maximum
economic benefits. While this has immediate appeal, it
obviates smaller, less environmentally damaging
alternatives for more elegant projects with accompanying
larger environmental perturbations.
Section 1504.3 procedure for Referrals and Response of
Unsatisfactory EIS's to the Council on Environmental Quality
Agency representatives were very interested in the
limitations associated with EIS referral. This was
probably fostered by the fact that the only example of a
successful referral within EPA, Region IV, did not actually
result in stopping project implementation.
Section 1508.7 Cumulative/Secondary Impacts
The tendency of Federal agencies to focus solely on a
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particular project to the exclusion of all other activities in
the same geographic area was discussed• Some examples offered
during the workshop were the multiplicity of construction
within the boundary of the Biscayne Aquifer and South Florida
Water Conservation Areas. In general, it was agreed that
actions which, if taken in isolation may not be significant,
can be catastrophic when linked to other similar/different
activities. It was also acknowledged that it is difficult to
definitively ascertain exactly when too much of something has
occurred.
Section 1508.8 Effects
In a related matter, the difficulties of assessing
secondary impacts to the satisfaction of all parties was
entertained. Although this topic elicited a great deal of
discussion, other than a common sense approach, no
concensus was reached. Similar discussions were held
regarding the lack of depth in some states' coastal zone
consistency.
Miscellaneous Discussions
The federal role in land use understandably generated a great
deal of comment, especially considering the recent initiatives
by the Reagan Administration. While there was wide divergence
of opinion as to whether there was a legitimate federal role in
land use, it was acknowledged that the present federal statutes
and programs do, in fact, direct land use in certain areas. As
a result of specifics enumerated during the discussions, there
was a degree of amazement among certain of the attendees that
the federal establishment had such a pervasive inffuence on
land use.
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APPENDIX
The EPA, under authority of Sub-Section 309 of the Clean Air
Act, is charged with the responsibility of reviewing and
commenting in writing on proposed actions of Federal agencies
referred to the EPA and related Environmental Impact Statements
prepared pursuant to the requirements of the National
Enviromental Policy Act.
Under the CEQ guidelines, EPA is mandated to respond to draft
ElS's within 45 days of the published date of receipt unless
the originating agency establishes a longer deadline or we
request, and are granted, a 2-week extension.
EPA's review of the draft EIS addresses both the environmental
inpact of the proposed action and the adequacy of the
information presented in the DEIS. Subsequently, our comments
are then designated by 2 notations: Categories LO, ER, OR EU,
which signify an evaluation of the environmental impact of the
proposed action; and categories 1, 2, or 3, which signify an
evaluation of the adequacy of the document.
o LO (Lack of Objections) - EPA anticipates no significant,
long-term objections to the proposed action as described in
the draft EIS, or suggest only minor changes in the
proposed action.
o ER (Environmental Reservations) - EPA has some
significant reservations concerning the environmental
effects of certain aspects of the proposed action. EPA
believes that further study of suggested alternatives or
modifications is required.
/ i Ti^oatiBfactorv) - EPA believes that the
o EU (Environmental because of its
proposed action effects on the environment.
potentially anm u that the potential safeguards
Furthermore, EPA believes . y,_
which might be utilized may not adequately the
environment from hazards arising from this action. EPA
environment xr tives to the action be analyzed
recommends that alternatives a„4--ir»n at- ai l )
- ., _ -» i-ua nnQctihilitv of no action «t uix ) •
further (including the possiom^
the NUMERIC RATING OF:
1 - (ADEQUATE) - The draft EIS adequately sets forth the
* proposed action as well as
environmental impact °f :e jpthe project or action.
Alternatives reasonably avaiiauie x- f
2 - (INSUFFICIENT INFORMATION) - EPAfjAy^he*'
EIS does not contain sufficient information to assess tully the
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environmental impact of the proposed action. However, from the
information submitted, EPA is able to make a preliminary
determination of the impact on the environment. EPA has
requested that the originator provide the information that was
not included in the Draft EIS.
3 - (INADEQUATE) - EPA believes that the Draft EIS does not
adequately assess the environmental impact of the proposed
project or action, or that the statement inadequately analyzes
reasonably available alternatives. EPA has requested more
information and analysis concerning the potential environmental
hazards and has asked that substantial revision be made to the
draft EIS.
All final EIS's resulting from DEIS's not rated LO-1 are
reviewed to determine whether the statement substantially
resolves the problems surfaced by the Draft EIS.
In most instances, substantive changes are made in the final to
reflect our comments. In cases where we had serious concerns
and/or found the project to be environmentally unsatisfactory
in the draft stage and the final has not made any concessions,
we attempt to work the problems out with the agency prior to
proceeding with a referral.
NEPA AND THE PLANNING PROCESS
Panel Members: Dr. Cliff Bragdon
Mr. Bob Cooper
Mr. Joe McEnerney
After an introduction of the panel members Dr r
summarized three parts of CEQ implementing regulation/3??0?
emphasized planning. These are: that
Section 1501.2 Incorporate NEPA into Agency Planning
This section emphasizes the need to
environmental planning into the agency's n^r-m^nC:0fporate
requirement. It has been EPA's exnlrf 1 Planni"g
environmental planning for a proTect * that if
-concurrently with other project planninq 18 •started
time saving can be realized in project implementation*01^10
Section 1502(c) Indirect and Direct Impacts
This section discusses the need for
considering both direct
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and indirect project impacts during the NEPA process. This is
seldom done because the indirect impacts are usually out of the
agency's control.
Section 1506.2 Reducing Duplication
This section suggests using the NEPA process as a vehicle
for addressing project inconsistency with State and local
land use plans. It also suggests using the environmental
document by State and local agencies in their permit
decisions. EPA's experience suggests that this can be
quite valuable.
Following a general discussion of the above, the other panel
members presented a summary of problems they encounter in
working with the NEPA process.
Bob Cooper discussed an EPA construction grants project for
which he had been project manager. The EIS discussed sewerage
treatment strategies in South Florida. In this Draft EIS, EPA,
Region IV recommended the "no action" alternative for
seweraging the area. It was felt that if the area was
seweraged, it would be immediately opened-up for secondary
development.
Joe McEnerney commented on three areas of concern to the EIS
Review Branch. These were:
1. The use of common planning assumptions for different
agencies' EIS1s in the same geographic area;
2. Reluctance of agencies to address the secondary impacts of
the project; and
3. Early coordination of projects with regulatory agencies.
Using the above as discussion topics, the workshop was opened
for questions and responses from the participants.
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STREAMLINING THE EIS PROCESS
Panel Members: Ms. Nancy Nord
Mr. Robert Howard
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Federal Renter / Vol, ^ Nn ^ f ^
/ Notices
-COUNCIL ON ENVIRONMENTAL
QUALITY
Agency Implementation of CEQ'a
NEPA Regulations
August 8. 1981.
AGENCY: Council on Environmental
Quality, Executive Office of the
President.
action: Request for public comments.
summary: This notice request* public
comments on Federal agency
implementation of CEQ's NEPA
regulations (40 CFR Part 1500 ei seq.).
address: Comments should be
addressed to General Counsel. Council
on Environmental Quality, 722 Jackson
place. N.W., "Washington. D.C. 20006:
Attention: NEPA Regulations Oversight
date: Comments should be received on
or before October 13,1981.
for further information contact:
Nancy Nord. General Counsel, Council
n Environmental Quality, 722 Jackson
Place. N.W.; (202) 395-5750.
supplemental iNFORMATJOfe Since the
creation of the Council on
Environmental Quality in 1970 by the
National Environmental Policy Act
(NEPA), CEQ has been responsible for
overseeing federal efforts to comply
with NEPA. In 1970, the Council issued
Guidelines for the preparation of
environmental impact statements. In
1973 the Guidelines were revised to take
into account the first three years of
experience. However, many problems
still existed, and CEQ conducted a
broad investigation resulting in a 1078
report called "Environmental Impact
Statements: An Analysis of Six Years'
Experience by Seventy Federal
Agencies." In 1977 CEQ began a new
rulemaking process, including public
hearings and extensive consultations
with all interested organizations,
especially the business community, state
and local governments, and
environmental groups. Final regulations
were issued on November 29,1978, and
became effective and binding upon most
federal agencies July 30,1979, and for all
remaining agencies on November 30.
1979.
Under the NEPA regulations each
federal agency must adopt implementing
procedures after consultation with CEQ
(see 40 CFR 1507.3). The Council
published its Tenth Progress Report on
Agency Implementing Procedures on
May 7. 1981.
Additional guidance, as provided by
40 CFR 1506.7, on the NEPA process was
published by CEQ on general policy and
procedures (Memorandum, Forty Most
Asked Questions; March 28,1981; 46 FR
1802&-18038): and on the scoping
process (Memorandum; April 30,1981).
The Council's regulations and agency
procedures issued pursuant thereto were
designed to make the NEPA process
more useful to decisionmakers and the
public, reduce paperwork and delay,
and establish procedures for referrals in
case of interagency conflicts. As part of
the Council's NEPA oversight
responsibilities, and to further the goals
of Executive Order 12291, we are"
interested in the public's views on how
NEPA procedures issued by the various
agencies have fostered implementation
of NEPA. The Council wishes to solicit
comments on the following questions:
1. is the scoping process a useful
procedure for identifying controversial
issues?
2. Is the scoping process used at an
appropriate stage in the development of
agency proposals?
3. Is tiering being used to minimize
repetition in environmental assessments
and in environmental impact
statements?
4. Havecategorical exclusions been
adequately identified and defined?
5. Are environmental impact
statements emphasizing analysis or
description?
fi. Are environmental documents being
Integrated with any other analyses
required prior to taking action?
7. To what extent has duplication with
state and local procedures been
reduced, especially in states with legal
requirements similar to NEPA?
8. Are there suggestions for reducing
costs in preparation of environmental
Impact statements?
9. Are there suggestions for
eliminating delays In the preparation of
environmental impact statements?
10. To what extent if any, have
agencies required an applicant to submit
information in excess of that needed to
make a decision on an application?
11. What day-to-day agency practices
could be improved to assure better
compliance with NEPA?
By soliciting comments the Council
wishes to identify possible methods by
¦which the goals of NEPA can be more
precisely and expeditiously
accomplished. Ail suggestions and
comments will be carefully considered.
Commenters are requested to be as
specific as possible when commenting: it
is preferable that particular cases or
examples be cited. Limited resources do
not allow us to investigate each case,
but we can contact the agencies
involved to secure their general
compliance with NEPA and the
regulations. The Council would
appreciate receiving any responses on
or before October 13,1981.
Note.—Attached i* a related memorandum
for Federal agency NEPA liaisons.
Naocy Nord.
CttoeraJ Counrel.
41131
Memorandum fot Federal Agency NEPA
Liaisons—Revision* to Agency NF.PA
Procedure*
August 6.1991.
Since the issuance in 1979 of the Council's
regulation* implementing the National
Environmental Policy Act (40 CFR 1500 et
teq ), almost all agencies of the federal
government have issued their own
procedures, as required by { 1507J of the
regulations. Some agencies are now
reviewing their existing procedures to
accommodate new programs and to assure
tWtMhey-are benefiting from their recent
experiences under the regulations. For
example, agencies that were hesitant to use
categorical exclusions, tiering, or other
provisions in the regulations are now taking a
second look at those provisions. The Council
encourages such evaluations. We will be
working with agencies to improve their
efforts to use environmental documents to
achieve the goals of the regulations: to make
better decisions, and to reduce paperwork
and delay.
Section 1507.3 ("Agency Procedures")
states that "The procedures shall be adopted
only after an opportunity for public review
and after review by the Council for
conformity with the Act and these regulations
* * * Agencies shall continue to review their
policies and procedures and in consultation
with the Council to revise them as necessary
to ensure full compliance with the purposes
and provisions of the Act."
Agencies considering revisions to their
NEPA procedures are requested to consult
the Council during the early stages of their
review so that CEQ can advise them on the
regulations and on the practices of other
agencies. Agencies should make a special
effort to consult other agencies with similar
programs to coordinate their procedures,
especially for programs requesting similar
information from applicants.
The cover letter transmitting proposed
revisions should identify and explain any
Important or controversial changes. Proposed
revisions should be transmitted to the
Council prior to publication in the Federal
Register and °Bhould be addressed to the CEQ
General Counsel.
After Federal Register publication and
completion-of the public review period, the
agency should send us the proposed final
version, including the preamble with
responses to comments, on a marked-up copy
of the Federal Register version. The Council
will review the proposed final procedures ss
expeditiously as possible and in no event will
this review take longer than 30 days.
Thank you for your cooperation.
Nancy Nord,
General Counsel.
|FK Doc. n-ZJJM Filed S-ll-n MS ms|
WUJNC COOf 112S-01-M
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Nancy
What I'd like to do is take a somewhat different
approach from the other workshops. As I indicated during my
presentation this morning, the professional staff at CEQ is new
as of May of this year. What I would like to do is use our
request for public conments recently published in the Federal
Register as an agenda for this workshop. I would especially
like to hear your perceptions of problem areas in the CEQ
regulations and the problems your agencies have had in
implementing the CEQ regulations. Any suggestions you have for
changes I would welcome, especially those suggestions for ideas
that streamline the process. So with that and emphasizing that
I want this to be a very informal session, I'd like to initiate
a discussion of scoping. I would be very, very interested in
not only the good experiences you all have had with scoping,
but if there are bad experiences, I'd like to hear about those
too so that we can start thinking about how we can make the
process work a little better than it has in the past. Is there
a general consensus that the scoping procedure is a useful
procedure for identifying problems early or is it being used as
the first step to start talking about the merits of a
proposal? Does anyone have any observations on that?
Participant
I think it's a good starting point but it can't be
just one meeting. There has to be extensive follow-up. Often
times the public will wait until the EIS is published to make a
comment on it even though we had documented all along the way
so there has to be more than just a meeting. There has to be
phone follow-up and also letter follow-up and then setting up
another meeting to reach the people you didn't reach the first
time.
Nancy
How do you identify the people you need to reach?
Participant
Usually you know the Federal agencies, the State
agencies, the county and the city agencies and then you'll have
your private interest groups and also a notice is placed in the
newspaper.
Nancy
To what extent have any of you experienced problems
getting other federal agencies to actively participate in the
scoping process?
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Participant
Travel funds. That's the difficult thing.
Nancy
Is that the basic problem? Just getting people to
meetings? Recently several agency people recounted to me an
experience with two agencies, one of which was acting as the
lead and the other one as the cooperating agency. The second
agency was not inclined to travel 50 miles to attend a scoping
meeting and that ended up adding months of delay to the
process. Now 50 miles is not a question of travel funds.
That's quite a different question.
Participant
Too often scoping has been considered to be a
meeting. First of all scoping should be an effort ... whatever
contacts are necessary with those agencies, groups, and
individuals who might have some input. I think it's very
important for the agencies to make a determination on their own
of the merits of the project and also to determine what the
significant issues are. And that must be a best faith effort
on the part of the agency to make that determination. I would
like to see it done in such a way that there is a summary that
they have made that would be available to all people who will
be involved in the scoping. Now there will be preliminary
meetings and then that should be — there should be some point
where you're ready to publish your findings as an agency.
Publish may not be the right word but to release those findings
and say this is what we have found in our agency. That's maybe
the point where a meeting has to be held. I don't hold that a
meeting is of tantamount importance but that there should be a
point where you have contacted the people and they have been
able to respond to you so that you cut off for once and for all
those things that are of no significance. You know you can
look at EISs and you still see the volumes and volumes and the
pages and pages of items in very much detail that would never
be discussed in a FONSI for instance. Under other
circumstances they are considered to be of less significance
and why not let them lie as that and deal with the two, three,
four or five items of significance in the EIS. The culmination
of the scoping process should be that virtually all people who
are involved agree on this with the final decision being with
the agency that develops the document.
Nancy
Certainly the CEQ regulations don't require that an
actual meeting take place. The regulations talk in terms of a
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scoping process. I have noticed that several of the agencies'
regulations do require an actual meeting. What other
techniques are there for scoping in addition to having meetings?
Participant
I think scoping is a very misunderstood concept. At
least in my dealings with it. We typically will have a scoping
meeting. But very often I find that the scoping meeting itself
is not really the most productive part of the scoping that we
get accomplished. Very often the most productive part is when
you reach for those people who have special expertise in areas
and discuss the project with them and try to scope out what you
should be addressing — what are likely to be the things that
come up with people who have technical backgrounds in it rather
than in a public forum. That is very often very helpful and
probably the most important part of scoping. However, in a
recent project that we were involved in where we had a public
scoping meeting, and we always do, the reverse was true. In
fact, in that scoping meeting we got a significant number of
comments that we really didn't know were going to be coming
from the public. We didn't know that they were very concerned
regarding certain kinds of alternatives that hadn't been
previously looked at. And it was very, very helpful. I guess
what I want to say is my impression is so much like every part
of the EIS you have got to kind of design the scoping process
to what it is you are dealing with. And it's not only a single
public meeting. At least in our experience it isn't. There is
a perception on the part of applicants and federal agencies
that the scoping process is a meeting. And that really isn't
always true.
Participant
One thing I've observed from industry's viewpoint is
that there are some agencies who seem to take the scoping
process as sort of a way of getting feedback not only from
other cooperating agencies but from the public on what they
feel are the issues. They identify the important issues almost
in a democratic sense of how many people are for this being an
important issue — they count it up and then through a public
referendum decide the issues. When you look at the project
from a purely technical/scientific standpoint and forget the
emotion surrounding the projects you often find that some of
the things that they hone in on, while they might be
politically controversial or something of that sort, are not
necesarily the significant issues affecting the natural
environment.
Nancy
At what point does the scoping process begin?
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Participant
As presently stated, the scoping Droo»0
the decision has initially been made to or occurs after
like to get involved earlier than that t Qepare an EIS, we
indeed a real concern for the EIS being prepar if there is
about streamlining the EIS process maybe vh ' • When we talk
streamlining is, to get together before you r>r S where the
really streamline the process. " epare the EIS and
Nancy
Well, that leads me to another question ^ •
the situation in which you have an applicant ?lln<3 with
agency and the boundaries of the project are Drptf?"1109 t0 an
out. To what extent is it practical or how far do *\rauch drawn
feel they go in identifying alternatives. Do you fa ? agencies
the terms of the project as presented by the anni i ound by
the decision is really a "go" or "no go" one or ^ that
a wide range of alternatives beyond those ' practi nJ, oJc at
applicant? And is there a way to integrate the r the
into the applicant's planning procedures? Pln9 process
Participant
-1 the- Nuclear R^ulatory Commission. Our
problem is that we are m a position of interactinq with
private or public utility after they have done all ofthlir-
work, made all of their decisions, have built up a term J,
argument for their goal and we are often times called in^o^n
areana that's far beyond our area of expertise in terms of
looking at alternatives. How far do we carry alternative sites
for example? It s a difficult problem and I think that our
real problem lies with the fact that there's no way that I have
seen yet to encourage the utilities at an early stage in their
own planning process to involve the public. Quite often the
public doesn't know anything about these projects until we aet
into the act. We have a very formal process and we manage to
get everybode notified after we hear about it but that's verv
late in the process and the alternatives that are available are
extremely limited. I see a need for permitting agencies to aet
the private initiating groups to inform the public earlv
We're limited in our ability to do that.
Participant
This is true I think for most of the permittinq
agencies. There is a big difference between a permitting EIS
and an EIS which is by an agency sponsoring a project. And the
role of alternatives I think is somewhat different and, yet, in
recent scoping metings that I have chaired, alternatives are
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still one area that the public and certain other bodies are
very interested in bringing up and asking the federal agency to
address. I think it's — the key point that I keep coming back
to is, you know the utility, say, is there, and the public
service commission is there, and what role then does the
federal agency really play other than disclosure? You have a
fine disclosure of the various alternatives and your analysis
of them and the preferred — environmentally preferred
alternatives but usually the decisions are made. Public
service commissions have made their decision, the utilities
made their decision and it's of interest to me particularly as
to what role then are we playing.
Participant
I'm not an applicant but I work with industry. I'm
Mike Hartman for the record. I'd like to make a follow-on
suggestion based on the problem that has been outlined. It is
true that industry gets involved in their planning and making
decisions based on their planning in an earlier process than
the NEPA process. The NEPA process as far as industry is
concerned is after the fact. Now it's the chance that
government has to sort of second guess industry decisions. Now
the thing that needs to be done I think is bring these two
decision making processes more in line from a timing standpoint
because naturally industry has made a decision, if they have
spent millions in purchasing sites and d°i.ng engineering
studies and then go into government with an application
involving NEPA and the guy says now wait a minute, you can see
the defensive posture that industry is going to be in. Ok?
Now if we had a scoping process that worked or could work
particularly honing in on alternatives even more critical than
impacts almost - and I'm talking about basic alternatives
likes Do you really need this facility? Have you really sited
it right? And have that very, very early before an application
is submitted. And make it become definitive in terms of, look,
these are the alternatives that we're going to examine and
government has agreed that these are the alternatives and
they're not going to three years later when they're going
through a NEPA process bring up another one, unless they have a
very, very good reason - unless something is of obviously great
public significance. Another problem is that certain questions
are going to have to be ruled on by some other agency and it
may be a state agency as in the case of a power plant, looking
at the question of the need for power, for example, where very
often state utility commissions have jurisdiction to decide
that issue. And they have set up the staff, they have their
own testimony and they go though an awful lot of stuff to
certify the need for power. What I don't understand is why the
NEPA doesn't rely on that decision basically but imposes this
responsibility to overview everything and in overviewing it
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sometimes government officials want to come up with another
second way of looking at the question and that can cause
problems. I wish they would have early scoping meetings, look
at the analysis done by the applicant and other agencies, and
determine that they are going to mainly rely on his judgment
ultimately because he s got the expertise and we'll not
necessarily second guess them although perhaps if they had very
good reasons they could do that.
Nancy
Well, you've raised two points. With respect to your
first point I am curious as to what the attitude of the agency
would be if an applicant came in and said we'd like your help
in scoping his project because at some point perhaps two years
from now we are going to be filing an application for a
permit. But in our initial planning stages we would welcome
your help in helping us scope the project. Is this something
that the NRC for example is doing?
Participant
Well, yes as a matter of fact we do it. We have
regulations which we define as "early site review"
opportunities for the utility and it's put in there purely to
encourage the industry to come in to resolve these big issues
of are you putting it at the right site. It's primarly ... We
have only had one indication of interest in that and we get
very poor responses. We would certainly like them. That's why
the regulation was developed.
Participant
There's one big concern about this whole area and it
has to do with the timing of the evaluation of alternatives
versus the timing of the publication of your documentation of
that evaluation of alternatives and I think that herein may be
a lot of the problem that you have a lot of site specific
concerns that you must deal with after you have gone ahead and
made some other basic decisions and that takes a great deal of
time. There's a lot of investigations on site, there's a lot
of mitigation work that has to be done, working out the
applications, etc., and so there's a rather substantial time
frame between some fundamental decision making on alternatives
to the point that there's a documentation and a disclosure of
that by the federal agency. I think that sometimes things
change in that time frame and you may even have scoping or you
may have major issues come up which then are alternatives and
it causes not only the applicant a great deal of difficulty
trying to deal with those when there is really no reasonable
expectation that you're going to be able to change your
decision, easily at least. So it is a difficult problem.
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Nancy
The regulations, the Act and a number of court cases
indicate that an agency need only look at reasonable
alternatives. Is this sufficient guidance?
Participant
I think that there is a responsibility upon the agency
as to determination of what is reasonable and guess
subsequently what the courts will say. It's a difficult work
to define but clearly in this case I think there's good
argument that there may not be another situation that's
reasonable. We've certainly come across that ourselves in our
construction grants wastewater projects where you're talking
about upgrading a very large existing facility. It is really
not reasonable in some cases to consider building a whole new
plant somewhere else. If a decision to proceed with a project
was evaluated in the context of what other sites were
reasonably available and we found two other sites that were
basically reasonably alternatives and agreed that if you had to
go to one of those other sites, you would probably not have
this particular industrial participant. But you'd at least get
an opportunity to evaluate what the nature of this particular
proposed site was in comparison to what other sites were
available to build the plant.
Participant
You know, when I was first in this business several
years ago there was a concern that was expressed by applicants
that they basically wanted to go ahead and line up the property
and not have the costs of the property escalate and get options
and everything before the project would be disclosed through
the NEPA process and the evaluation of alternatives. Since
that time I have heard from applicants and their consultants
that that's no longer such a great concern. It's more of a
concern that if you may get massive delays in your project and
the resulting escalation of costs, in fact it's better for you
to disclose it early on even if you don't own it those costs
are insignificant compared to some of the other costs. I think
industry at least in my experience and may be somebody here
from industry would prefer to talk about this but they would
not have a problem with you dealing with alternatives with them
and even making your preference known on alternatives when
they're having to deal with alternatives. But sequential
decision making makes nobody look good. You're just asking for
problems. And I tend to agree I think and hopefully others too
that it's much, much better if you can have the decision making
to be made, the alternative evaluation.
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Participant
There is a model for that in, i don't v
anybody here from the Rural Electrification Admi ^ there's
their implementation guidelines do have this tvr>niStrat;'"on' but
whereby you look initially at siting and you Procedure,
study which is passed on by the agency before 1S^ a sit;i-n9
the same time you look at major alternatives t-^°U on* At
And that is also passed on before you into " "J?
So by way reference. Els process.
Participant
I'd like to really just ask the ou* *•
regulatory agencies of private industry if ^ ®tion for the
control over anything other than the "no actio0" ^°U ^ave anY
Is there anything else you can look at? if the*1, a^ternative.
in and says, this is what we want to do and th ."Lnc^|Jstry comes
want to put it, is anything else but a is where we
strawperson? strawirian or a
Participant
Other than the regulations that we're ri
causes the federal agencies to disclose not o eaimg with, it
to the federal agencies but also alternatives t* t-v.aJ"ternativ®s
and to others and it's certainly a good point °T applicants
point that we're all making here — the role'th think it's a
agencies play through NEPA in the evaluation a federal
information on alternatives. I would prefer t° lscJ-osure of
one of assisting applicants make good d° role be
decisions that are environmentally sound der-ieC'1S1°nS * Make
they have a reaction from the federal agencvS1°"S* S° that
having to go on line and go public with thif t0 tlleir
would be my preference. There are some thinas That
procedures now which are hindering or • wa^ or
occurring. 9 r hamPering that from
Participant
Nancy, you were talking about „
alternatives - reasonable alternatives. it some bounds on
to what the obligation of agencies and "other •°Ut aS
thing. I think we have to realize that- v. are in th-"-s
alternatives you ought to look at alternative?*^?0are^- T
environmentally, clearly environmentallv mainly
alternatives. And use that as some kind of « ^ ®.uPerior
forget about other alternatives that miaht Y °.k a"d
nature or some other. We shouldn't use NEPA and e^?Pornic ,in
evaluation to make sure that industry makes otrSU " 6
We never make perfect decisions. It may be thatInLdecisions,
things based on politics for that decision to site ?hat fLJuty
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brings up such terrible environmental consequences to it and
there is clearly another situation over here that you should
have looked at.
Nancy
Isn't that what NEPA's all about? I mean do we have
to say that again?
Participant
No. But I think some people use NEPA as an excuse
that perfect decisions are made.
Nancy
The purpose of NEPA is to make sure that informed
decisions are made. On another point, the CEQ regulations
clearly allow one federal agency to adopt the EIS of another
federal agency. They are silent on the question of the
relationship between a federal agency and the state agency if
the state is producing an environmental impact statement-like
document. This is a problem that I m aware of and I d like to
clarify that. What do you think?
Participant
I'll qive one example of this situation. That has to
do with the State of Florida. The State of Florida has site
certification process for utilftY .induStfy.h^ nro£esses are
process for other kinds of activities and these processes are
different than the NEPA process although they contain ma]or
pieced of the NEPA process. And what EPA has done and what I
loltt encourage othfr federal agencies to do is as well is to
work with the9 states to use the state process as much as you
can. We have an agreement to combine the State site
certification process with the EIS process. And it s working
very well. The major difference in the two processes is in the
evaluation of alternatives. The state role is one basically of
certifying a proposed site and making it an environmentally
compatable site rather than a full evaluation of reasonable
alternativs. So, we have basically divided the workload
Setween the agency looking at the alternatives and the state
addressing the site specifics with our overview looking at it,
working with them.
Participant
I'm with the Department of Transportation, like I said
and I notice our problems are different from other agency
problems but the conpliance document rather than a problem
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solving document. And on top of that people that review the
document are so often so far removed from the project that they
don't understand the key issues involved and the questions and
suggestions that they make sometimes are unrealistic. People
in Washington, how are they going to know about this little
certification program where the local agency person makes a
certification and he goes on record saying I don't find
anything environmentally wrong with this project.
Nancy
I would encourage agencies to do that. The closer
that the decision maker gets to the site of the project, the
better, and more well informed decisions he is going to make.
On a different point, do any of the agencies here after
preparation of the EIS and construction of the project go back
and review the mitigation promises that were made in the EIS to
take look at what is ... and if so, what have you found?
Participant
I work for the Corps of Engineers. But the Corps and
I don't know what time frame I'm talking about but it's been
within the last couple of years — out of initially one hundred
and twenty to look at, they found that all but 48 had adequate
post construction data. And out of those 48 they further cut
it more to what they could make sense out of. They came up
with twenty that had reasonable data. Those reports are coming
out now. So yes, someone is looking at it in the Corps. And
I'm assuming that there will be a summary document of how good
the techniques for estimating mitigation and how good it's
working. There's also been some other work on estimating
mitigation for EIS preparation.
Participant
How do you estimate mitigation for a project?
Participant
Oh there's all kinds of methods. In the Lower
Mississippi Division we have our own mitigation method. - It's
called the habitat evaluation system. The F&WS uses the
habitat evaluation procedures. We use modifications of both.
Participant
Is this an area where there might also be a difference
between regulatory and authorized projects. Where there might
be a federal project versus a regulatory EIS?
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Participant
It depends on the project. We can go through the »ame
procedures for a permit process as we would go through for our
own. It just depends on the size of the project and the area
impacted. We've required mitigation on permits.
Participant
From EPA's standpoint on this question of mitigation
to the extent that there is a requirement somewhere else for a
follow-up, because of resources, typically there hasn't been a
major emphasis on the part of the agency to go back and check
on things.
Participant
Ready made mitigation follow-up.
Participant
That's right. Again it depends on the project.
Participant
One of the points in another session was that in
regulatory environmental review the mitigation requirements
were translated into the permit because that was enforceable
whereas the NEPA mitigation was not enforceable and I was . ..
because we have that feeling that now under the regulations if
we put mitigation requirements in our EIS it's certainly more
enforceable. It's something that if we say we're going to do,
we must. That's our position.
Participant
Well, we become visible. My understanding of this
section is that we're supposed to discuss the mitigation and
the program that we're going to use to monitor it. So,
supposedly we're creating a process or procedure that we
describe in the document. It's public knowledge and questions
can be raised if we don't have our act together.
Participant
Probably mitigation is the most difficult when you
have a party which is actually doing the work who is different
from the party who did the EIS, i.e., another responsibility
center. It gets much more difficult in that case. If you're a
permitter for an applicant or with the Highway Department where
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you have state, locals and others involved in making sure that
all along the line people understand what it is they're
supposed to be doing. I don't think it's necessarily a
conscious decision not to be mitigation. It's just whether or
not the responsibility has been effectively communicated.
Participant
Well, in the permit case, for instance, you make that
a condition of the permit. You will do this? And it depends
on who writes the permit. It depends on how astute the
permitter is and the permittee is.
Participant
Well, if, the applicant doesn't communicate that to
the persons out there building it or whoever is operating it
and if the agency doesn't ever go out and look.
Participant
Of course, you begin to run into other problems. I
can't tell you of the volume of permits for instance in our
division, but I can guarantee you it's in the hundereds and you
have a staff of probably 16 maximum in the whole division that
would be handling these permits. And it's physically
impossible to check on a permittee unless it's a hot case or a
big case. You don't get money for the normal run of the mill
routine type permit. But, also we found that most people are
very willing to comply with the conditions of the permit; most
people are very honest — not in all cases, you know, there's
always the rogue or the renegade. But people are honest and
they want to do the best job. Especially if they want to get
hired again.
Participant
We found that to be true with applicants. They
typically want to do a good job. They want to be a good
neighbor.
Participant
We had a discussion this morning in the first session
about tiering and it's one concept that's very dear to me that
we've had some rather good success with. And I'm wondering if
anybody in this section has had any experience with it and any
ideas that you might be able to give on the concept.
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z
%pRo^
4PM-EA/CD
SB/ UN
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET
ATLANTA. GEORGIA 30365
Enclosed for your information is a copy of the proceedings
from our 1981 Annual EIS Conference. This year's Environmental
Review Conference is scheduled for October 21-22, 1982, at the
Atlanta Marriott Hotel. The format for the agenda will be
similar to that used in the past, i.e., three (3) main speakers
and four (4) Workshops. Our agenda is tentative at this time
and, therefore, open to any suggestions you wish to offer. One
issue already planned for discussion is the proposed reforms to
the Section 404 Regulations.
We have reserved a block of 100 rooms ($36.00 single; $48.00
double) at the Atlanta Marriott, Courtland and International
Boulevard, Atlanta^ Georgia 30043. You may make your reser-
vations by dialing toll free 800-228-9290.
IN ORDER TO TAKE ADVANTAGE OF THESE RATES, YOU MUST INDICATE TO
THE RESERVATION CLERK THAT YOU ARE ATTENDING EPA'S ENVIRON-
MENTAL REVIEW CONFERENCE.
The enclosed card may be used to indicate if you and/or others
in your office plan to attend/participate in this year's
Conference. A timely response will greatly assist us in
planning for the Conference. Also indicate on the card issues
you would like to present in the Workshops, questions you would
like to have answered, or items for agenda discussion. Our
target date for finalizing the agenda is October 1.
The interest you have shown in our Annual Conference has been
instrumental in making it a success. We look forward to your
continued cooperation and participation.
Sincerely yours,
C
Regional Administrator
Enclosures (2)
-------
Participant.
Well, I think that probably the simplest way to
describe it is going from a very general group of actions and
looking at those general groups and analyzing it. That's the
first tier. Second tier is then a second more site specific
look at an action. It could be two separate NEPA reviews. And
you gain from the general to the extent that you don11 have to
do over and over and over again the same evaluation of impacts
or alternatives for the site specific if you have determined
that they're significant in the general. And it has saved us a
great deal of time.
Nancy
The point is that once you analyze a problem in a
general programmatic EIS you don' t go back and make the same
analysis in the site specific EIS.
Participant
We just attempted something which we think is tiering.
Participant
What's the difference between tiering and a
supplemental EIS?
Participant
That's what we did except that we wrote a programmatic
environmental impact statement on a chemical weapon system.
This is a system that's still under development. So in our
programmatic EIS that we published in draft stage — that's why
I don't know how successful we've been — we put it out where
we still had holes in our development like in air quality in
the manufacturing plant because none has ever been manufactured
before. We pointed out that we know this much now? we're going
to continue studies and it will be addressed in tiered
document. It is supplemental in the sense that it's going to
come later but it's also tiered in the sense that it will not
rehash anything that we've already discussed. It will take up
where we left off so to speak. And there were a couple of
instances like that and that's what we called it. I don't know
if that's true tiering.
Participant
Aren't you thinking more about such things as wetlands
disposal EIS where you go in and generically describe what will
happen to a wetland if you put wastewater into it. Then on the
site specific you're going to have different types of wetlands
you'll have to examine so you'll have to do a supplemental but
the general issue of wetlands has been addressed. Would you
call that tiering?
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Nancy
Well let's talk about that. A review of the on-going
mission, continuing mission analysis might be very useful to
the military body, but it's not necessarily required by NEPA.
And it might be a good management tool and may be a very useful
thing for them to do but you don't need to call it an EIS. If
you want to do it under the management scheme you set up for
doing EIS's that's fine.
Participant
What about the language in the regulations that has
been interpreted to require EISs on continuing activities?
Nancy
There are certain kinds of federal actions that are of
a continuing nature which may require an EIS. But to do an EIS
on West Point because West Point isn't going to go away, in my
view, is not required by NEPA and doesn't fit into the
definition of "major federal action" in the Act. To give you
all the background on this situation, the Army decided to do an
EIS on West Point. They got an inquiry from their oversight
committee on the Hill as to why they were spending $300,000 to
do this and the proposed response was that it was required by
NEPA. As I said, if they want to do an EIS because it's a
useful management tool for them, great — do it. But NEPA
certainly doesn't require it. There's no proposal. The
"proposal" is merely to continue what you've been doing for 200
years. And to the extent that they have to come up with
alternatives that are not real alternatives — discuss shutting
it down? That's just not a real alternative. That's not what
NEPA's all about.
Participant
Different subject. Is there any difference in the
feelings at CEQ about the prohibition of using the AE to do EIS
and design work?
Nancy
What is the controversy?
Participant
...the controversy from the DOD side of the house is
that we can not utilize the same AE for design work and EIS
work.
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Nancy
Well let's talk about that. A review of the on-going
mission, continuing mission analysis might be very useful to
the military body, but it's not necessarily required by NEPA.
And it might be a good management tool and may be a very useful
thing for them to do but you don't need to call it an EIS. If
you want to do it under the management scheme you set up for
doing EIS's that's fine.
Participant
What about the language in the regulations that has
been interpreted to require EISs on continuing activities?
Nancy
There are certain kinds of federal actions that are of
a continuing nature which may require an EIS. But to do an EIS
on West Point because West Point isn't going to go away, in my
view, is not required by NEPA and doesn't fit into the
definition of "major federal action" in the Act. To give you
all the background on this situation, the Army decided to do an
EIS on West Point. They got an inquiry from their oversight
committee on the Hill as to why they were spending $300,000 to
do this and the proposed response was that it was required by
NEPA. As I said, if they want to do an EIS because it's a
useful management tool for them, great — do it. But NEPA
certainly doesn't require it. There's no proposal. The
"proposal" is merely to continue what you've been doing for 200
years. And to the extent that they have to come up with
alternatives that are not real alternatives — discuss shutting
it down? That's just not a real alternative. That's not what
NEPA's all about.
Participant
Different subject. Is there any difference in the
feelings at CEQ about the prohibition of using the AE to do EIS
and design work?
Nancy
What is the controversy?
Participant
...the controversy from the DOD side of the house is
that we can not utilize the same AE for design work and EIS
work.
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Participant
I can tell you what the previous thinking on this was
because I was actively involved in discussions with CEQ on the
matter. The thinking was that if a consulting firm can have
some reasonable expectation of a continuation in a project from
a design standpoint, that would prejudice them or make them not
an objective party for doing an independent evaluation of
alternatives. They would have a mjaor interest in the outcome
of the first part. The larger the project, the more money that
they might then be able to garner through the step two or the
next part of the process.
Participant
Well, from a DOD standpoint our programs are fairly
well outlined ... construction program and if we've got a
project that we're anticipating in the FY'86 budget a program
and we want to hire an AE to do the EIS . . . the environmental
documentation, it doesn't make sense to me to have to pay two
consulting firms to do the same job because the guy that's
doing the environmental documentation is going to do probably
up to the 30% submittal in design work if he's going to do a
good EIS.
Participant
That's a different situation. In construction grants
program he's got three steps and if you get past the first step
in planning and then you decide to do an EIS it would be ... I
think it's a conflict of interest in his program to do that.
Participant
Would you have an initial contracting which would
cover the environmental and design aspects?
Participant
I can see that as being a very real problem. Why
would a consultant then propose or even fully consider the no
action alternative. They would say "my goodness, if no action
actually got selected here we would then not have this 70%
additional we're counting on".
Participant
Within the military construction program he doesn't
have the alternative really of saying "no action" unless during
his thought process or work process he comes up with a
situation that could totally preclude the proposed action. He
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doesn't have that choice when you come right down to the bottom
line. Our military construction program is based on the
assignment of mission of the activity and the overall national
defense complex. And we might change siting within an
activity, but we cannot change an overall program once it's
been cast.
Participant
How about this? You have an applicant come in. It
doesn't matter for what permit. How would you feel about the
guy who is the consultant for the federal agency preparing the
EIS and actually writing the comment if he is also the design
consultant for the applicant. How would you feel about that?
Participant
I've never been on your side of the fence. I've
always been on the other side.
Participant
Can I suggest that it's an area for review because the
objective is to get an adequate environmental impact
statement. That requires that reasonable alternatives are
identified and analyzed. In every EIS the "no action"
alternative has to be analyzed so, therefore, it seems like it
should matter to the agency. If the agency has in-house
expertise to adequately evaluate an ER then it doesn't make
sense for them to have to hire a second firm to do the EIS.
But if an agency doesn't have expertise, then the danger which
the present regulations are trying to avoid is necessary. It's
really important to have that.
Participant
Nancy, how about addressing just a little bit, if you
don't mind, what you plan. You told me I believe over lunch
that you got quite a few responses from your article. And how
much you appreciated people writing in. Address how you are
going to handle those.
Nancy
I see our activities proceeding in two ways. First,
to the extend that the commenters identify specific problems
with specific agencies' regulations. We will contact that
agency, let them have the benefit of the commenter's views, and
start a discussion with them to the extent that the coramenter
has identified a real problem. With respect to the more
generic problems, we will deal with those in one of two ways.
If
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the commenter has identified an area in the CEQ regulations
that needs to be changed, I'm more than willing to undertake
that process. It should be undertaken. If the commenter has
identified ambiguities in regulations which can be solved or
addressed through interpretive memorandum we will undertake
that activity once we digest the comments and the merits of the
comments. Actually, what I want to take away from this meeting
is a better sense of what areas of the regulations we should be
looking to for engaging in that activity. So, to the extent
there are anfoiguities in the regulations or you are having
problems either understanding them or aplying them, tell me.
That's what I want to hear. I also want to thank you for your
candor and responsiveness today. I have appreciated hearing
your views and encourage you to let us have the benefits of
your thoughts on how the NEPA process can be improved.
ENVIRONMENTAL CONFLICT MANAGEMENT
Panel Members: Mr. John Rushing
Mr. Richard Jackson
Mr. Robert Kerr
Ms. Louise Franklin
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sunmary of Workshop on Environmental Conflict Management
at the Fifth Annual Environmental Impact Statement Conference,
Atlanta, Georgia
22-23 October 1981
1. The workshop on Environmental Conflict Management was presented four times
with each session being one and a half hours long. It was organized in a panel-
discussion format with representatives from the Corps of Engineers and Georgia
Conservancy as the panel members. An EPA representative from their Washington,
DC office was also to have been a member of the panel but withdrew at the last
minute due to travel restrictions. No replacement was provided.
2. Total attendance at the four workshops was about 720 people. Following
prepared remarks by the panel members, an open discussion was held in each session,,
Copies of the remarks of the Chairman of the Workshop and the other panel members
are attached. Major points noted during the discussions included the following:
a. Early and continuing communication is necessary to minimize conflicts.
This includes communications'within agencies as well as outside of agencies.
b. Differences of opinion between professionals may occur as a result of
interpretation of the data base. Everyone involved in the process must understand
the limitation of the data.
c. Use of an interdisciplinary "team is Important in the planning process.
d. Use of a neutral third party to help resolve conflicts is viable only
when the parties in conflict are willing to accept the decision of the third
party.
e. Should two parties not be able to resolve a conflict in a timely fashion,
it should be escalated to higher level decision makers as soon as possible.
f. Training of environmental personnel in conflict management should be a top
priority item in state and Federal agencies.
g. The "scoping process" should be used to minimize conflicts.
3. Audience participation revolved primarily around the above points. It was clear
from the remarks made that there was considerable concern over the amount of time
'and money involved in "conflict management" and the lack of training provided in
this area. The one solution to most of the "conflicts" appeared to be earlier
involvement of the affected parties.
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ENVIRONMENTAL CONFLICT MANAGEMENT
Presentation by John W. Rushing, Chief, Environmental Resources Branch,
South Atlantic Division, Corps of Engineers,
at the Workshop on Environmental Conflict Management
Atlanta, Georgia
October 22-23, 1981
I would like to welcome each of you to the workshop on Environmental Conflict
Management and urge your participation in the discussions. The workshop is
organized in a panel-discussion format with representatives from two Federal
agencies - the Corps of Engineers and EPA - and a leading environmental organization
in the State of Georgia - The Georgia Conservancy - as the panel.
Introduce panel members. NOTE: EPA, Washington, representative withdrew at the last
minute due to travel restructions. No substitute was provided.
Following my brief remarks, each panel member will present his views on the subject
and then the floor will be opened to discussion. I encourage you to take advantage
of this opportunity to present your views and ask any questions you may have con-
cerning how to deal with environmental conflicts. This session will end promptly
in IH hours.
Disputes concerning environmental issues are not new. The environmental disputes o-f
the 1970's have been well-documented and undoubtedly will continue in the 1980's.
Prolonged, and sometimes bitter conflict involving government, developers, advocates
of environmental protection, and the general public can be anticipated on issues such
as the siting of hazardous waste disposal and energy facilities, the control of toxic
chemicals, protection of the coastal zone and certain critical environmental areas
and others.
Thomas Gladwin of New York University studied over 3,000 environmental disputes
involving industrial facilities in 40 Western Nations during 1970-1978. He found
that although the number of disputes has remained relatively constant since 1971,
characteristics of the disputes have changed. In the United States, environmental
conflicts have spread from the northeast and midwest to the "sunbelt" states, and
have come to include many types of facilities. The issues at stake have broadened
from an early concern with air and water to include land use, quality of life issues
and increasingly, human health concerns. *
Environmental conflicts have become more difficult to untangle as the number of issim
in any particular conflict have increased. Disputes more frequently involve multirj-i
parties as several levels of government and the "public" become deadlocked. Final! ve
the monetary costs of environmental regulations have increased dramatically for both'
government and industry.
What are we doing about this increasing problem of environmental conflict management?
As noted by Wendy Emrich in "New Approaches to Managing Environmental Conflict: How*
Can the Federal Government Use Them?," prepared for the Council on Environmental
Quality in June 1980, the Federal government is usually an important participant in
most major environmental disputes; yet its ability to manage intense conflict often
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suffers. Ineffective Federal procedures can easily contribute to a stalemate
among contending groups. Even the best of the known planning procedures and
public participation programs can result in an impasse. Government agencies are
therefore becoming increasingly aware that it is often the process followed to
resolve issues that creates a problem, not only the substantive difficulties
posed by the issues themselves.
Existing conflict resolution mechanisms reflect a long history of adversarial
institutions and approaches. Adjudication, arbitration, administrative hearings
and public meetings are founded on the principle of adversary proceedings. Opposing
parties present their arguments in the most extreme terms in order to prove the
rightness of their cases. Especially with complex environmental disputes, the
final decision is not always perceived as a lasting or satisfactory solution.
Further, the decision frequently stems from a procedural question and does not
address the roots of the conflict. There are supposed "losers" and supposed
winners . Often the parties become more embittered and opposed to each other
after the proceeding than before so that forces regroup and prepare for another
Del "C u 16 •
Fortunately, people on all sides of environmental conflicts are realizing that
there must be better ways to Resolve differences. In many cases, there is movement
Reasonable , to admit that issues seen as black and white
in the heat of the early 70 s may now seem more "gray" and therefore open to
collaboration and compromise. Many groups are aware that no one may really be
winning these confrontations; in fact, everyone may be losing.
In those cases in which collaboration or compromise is preferable, some innovative
techniques - such as mediation and facilitation - are available. These approaches
are not(i the answer to environmental disputes; indeed, there is no specific
answer . ^ch approach must be evaluated carefully for applicability in each
case and used selectively A Federal agency faced with conflict management problems
need notJ^elyJ?1? administrative hearings, existing planning and regulatory
procedures and litigation to anticipate, prevent and resolve disputes.
I would like to call on our panel members for their remarks. Please keep in mind
any questions or comments you may wish to make following their remarks.
(At the end of workshop session, provide handout to attendees).
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SADPD-R
20 October 1981
ENVIRONMENTAL CONFLICT MANAGEMENT
TITLE: New Approaches to Managing Environmental Conflict: How Can the
Federal Government Use Them
AUTHOR: Wendy M. Emrich
TITLE: Environmental Conflict Resolution
AUTHOR: John Busterud
TITLE: Environmental Mediation: Fighting Fair
AUTHOR: Barbara J. Vaughn
TITLE: EnvironmentalMediation: Bridging the Gap Between Energy Needs and
Ecosystem
AUTHOR: John Busterud
TITLE: Patterns of Environmental Conflict Over Industrial Facilities in the
United States
AUTHOR: Thomas N. Gladwin
TITLE: Environmental Mediation: An Effective_Alternative?
AUTHOR: Resolve Center For Environmental Conflict Resolution Report
TITLE: Mediating Environmental Disputes
AUTHOR: Laura M. Lake
TITLE: Mediation to Resolve Environmental Conflict: The Snohomish Experiment
AUTHOR": Jane McCarthy; Alice Shorett
TITLE: Mediation Office on Ecology Set Up
AUTHOR: Bayard Webster
TITLE: The Environmental Conflict
AUTHOR: New York Times
TITLE: Environmental Conflict - Resolution - The Promise of Cooperative
Decision Making
AUTHOR: John Busterud
TITLE: Environmental Conflict Management
AUTHOR: American Arbitration Association Clark-McGlennon Associates, inc.
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CONFLICT MANAGEMENT
Presentation by Richard Jackson, Chief, Environmental Resources Branch,
Wilmington District, Corps of Engineers,
at the Workshop on Environmental Conflict Management
Atlanta, Georgia
October 22-23, 1981
We all experience conflict as agencies or as individuals. . The question is
how do we deal with conflict and are we successful at dealing with conflict?
There are systematic ways to approach conflict management. Many of these
methods and techniques are outlined in the literature which has been
distributed as part of this workshop. What I would like to do is show you
how some of these techniques can work for you in managing conflict by
presenting a problem which we have had in our District.
The National Historic Preservation Act requires that a Federal agency
examine any proposed action to determine if that action would have an
adverse impact on historic properties or properties that might be eligible
for the National Register of Historic Places. The property, if it is
determined to be eligible, carries the same protection as if it were already
on the National Register. The conflict which we have had to deal with is
between Wilmington District and the State Historic Preservation Officer
concerning what constitutes an adequate survey to satisfy the law. In our
opinion, the State has been asking us to do more survey than is necessary.
We deal with the State in essentially three areas: historic properties or
structures, on-the-land archeology, and underwater archeology. We have not
had disagreements or conflicts concerning the first two areas of
investigation, but we have had a continuing problem in the third area.
The first step in dealing with a conflict of any nature is to assess your
position and to examine the position of the other person. It is helpful in
this step to use one of the models from the literature.
¦ WIN WIN/WIN
COMPROMISE
0 IMPASSE #L0SE
Degree of satisfaction
of other parties' concerns
c
o
•f-
ut
¦M
c
U
<0
>
O
u
c
o>
£
(O
o>
-------
In examining this model you can see that our satisfaction is on the ordinate
and the State's or others' satisfaction is on the other axis. Our
question to ourselves was to determine where we are in relation to this
joint outcome space. What do we want to get from the resolution of this
conflict? What is our position? - Our position is simply to identify and
protect properties either on or eligible for the National Register. It s
not surprising that that is exactly the same position that the State of
North Carolina has. Therefore, in examining the model at hand and examining
our position, we determined that we both had the same desire and that to
seek a resolution of our conflict, we should recognize that we are seeking a
win/win solution. An approach strategy can be selected from collaboration
which is a voluntary entering into an agreement involving cooperation and
mutual trust. Collaboration is best evidenced when there is a win win
situation. On the other extreme, some conflicts involve a win/lose
situation. That is, if one party wins, the other party must lose and here
is no ground for compromise. Competition is best exemplified by litigation.
Somewhere in between those two extremes is the idea of negotiation. In some
cases either party can give up part of what they wish, which raises the
satisfaction of the other. In negotiation, you may bargain, compromise, or
split the difference.
Some important questions that also need to be addressed would be to
consider, first of all, what is the desired relationship with the other
person. If you only have to deal with the person m this one instance and
will never see this person again, then you can be abrupt. If, however you
have to deal with this person on a continuing basis, then you need to
consider development of a better relationship. In our case we do have to
deal with the State on a daily basis. Therefore, the idea of a future
relationship is important in determining our strategy. Are the stakes high
or low? For us the stakes are high in this conflict because the amount of
funds that can be spent toward investigation is limited. Therefore, we are
willing to devote energy and time toward the resolution of the conflict.
The third question is a question of power. Who has the power or relative
power in resolving the conflict? In our conflict with the State, we believe
that we have all the power. In the projects that we have reached an impasse
on, everyone, including the Governor of the State the public, and the
Corps, was willing to proceed with the project and was happy with the
project, but the State Historic Preservation Officer and his staff were
holding the project pending the review of the studies that we have
conducted. Therefore, we felt that we have more power m the situation.
The fourth question to ask yourself has to do with interest compatibility.
Are the interests of both parties compatible or are they incompatible. In
our case the interest is compatible.
All of the questions that we had asked led us to believe that we would be
able to enter into a collaborative approach and solve our problem in a
mutually agreeable manner.
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Because the issue at hand was somewhat complex, we decided to consider some
ideas for managing complexities including concepts of early resolution,
which involves early involvement. We also considered the idea of data
management. Many times the facts and values involved with the conflict are
important in simplifying the problem, with even resolving problems in some
cases. What factors are relative to the decision at hand? Are there hidden
assumptions involved? All of these questions must be addressed in data
management. Thirdly, one might break the conflict down into subissues or
smaller issues that can be handled separately and resolved by themselves.
And, lastly, we considered a multi-tiered approach. It's not important for
the chairman of the board or the president or the District Engineer to get
involved in every decision. We, therefore, decided to attack the conflict
at the lowest possible level and attempt to resolve all issues that we could
before elevating unresolved questions to higher levels. Our first step was
to meet with the principals involved with the project. We traveled to
Raleigh and talked with the chief of the Archeology Branch and the staff of
the underwater archeologic group just in general terms to meet them face to
face. Next, we met with the State's technical staff in a 2-hour session and
dealt with four issues. The first issue was data or information. We found
that the State had information which we didn't have: information that led
them to draw conclusions that we did not. We agreed therefore to share data
more effectively. The State has. also agreed to use the Research Branch to
do archival research prior to developing positions on projects. The Corps
also agreed that we share archival responsibilities. Next we dealt with
probability modeling. When the State met with us, they showed us a model
which they had started to develop. We like the model* and intend to build on
it. It has to do with high, medium, and low probability based on archival
research.
Probability of Encountering Vessels
HIGH MEDIUM LOW
sturbance
MAJOR
Magnetic
Survey
etc.
•r-
O
E _
Magnetic
No
o oc
¦M O
Survey
Further
4J Z
O
Only
Work
m 2:
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The third are4 was survey methods. Before our meeting the State had
suggested that all project areas must be surveyed using a magnetometer to
measure the earth's magnetic field. Deflections in the field (anomalies)
will be evidenced whenever the magnetometer is passing over a submerged
vessel. The State has suggested that all anomalies should be dived on to
further investigate. As a result of our conference, we agree t at not a
anomalies will be important nor will they be dived on, but that we should
develop an expectation of gamma deflections in the eart s le on
archival research and the type of vessel that we might anticipate finding.
Therefore, we can dismiss certain smaller anomalies as obviously not meeting
our criteria. We need to do further work in survey methodology.
Considerable progress has been met.
The last area that we dealt with in our meeting was the concept of National
Register criteria. This is the most difficult of all the issues. Out of
all the 2,000 known wrecks in North Carolina, only two are on the National
Register The question has to do with what point does a vessel become
important enough to place it on the National Register What kinds of
criteria would one use to do that? We've looked at several areas including
naval architecture. The question there is whether the vessel adds
significantly to our knowledge of naval architecture during the time when
few or no records were kept. In some cases the cargo of the vessel itself
may be important. It may make this site National Register eligible. If the
vessels were associated with a great and important person or battle, then
that might make the vessel eligible for the National Register by itself.
For instance if we found the rowboat that George Washington crossed the
Deleware in,'then that rowboat would, because of its association with that
great person, be eligible for the National Register.
The Wilmington District has a conflict over what constitutes adequate
surveys under the National Historic Preservation Act. We are dealing with
that conflict using methods available in the literature Because of the
nature of the problem, we decided to attack it from a calibration point of
view We believe we are making significant progress. The key to both
avoiding and resolving conflicts is communication - open, free, and full
communication between the parties.
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EIS CONFERENCE
Presentation by Robert Kerr, Executive Director,
the Georgia Conservancy
at the Workshop on Environmental Conflict Management
Atlanta, Georgia
October 22-23, 1981
I'm pleased to be a part of the panel on conflict resolution - unfortunately,
it implies an expertise that I do not have. The Georgia Conservancy is often
in an advocacy role, but very rarely in a conflict mediation role.
On those rare occasions when we've tried to both mediate and advocate, we've
gotten into a rio-win situation. The Cumberland Island controversy is an example.
In that instance, we tried to develop a consitituency for acceptance of a General
Management plan while simultaneously trying to work within the structure to eliminate
the bad aspects of the plan. The perception was that we had caved in to the Departmeni
of Interior and sold our environmental heritage for a mess of porridge.
LESSON: Know your role in the conflict. We are now faced with another potential no-
win situation. I've been asked to chair a mediation task force that will bring
together elected local officials - or their representatives - with officers of
industries that are in the hazardous waste disposal business. The purpose is to
identify and resolve as many of the conflicts surrounding that issue as possible.
Of course, some of the industry representatives believe we are opposed to hazardous
waste sites while some of the elected officials think we're trying to put one in their
county. Of course, to be effective we will have to dispel both those perceptions when
we begin the process.
LESSON: It may be that it requires less skill to be an adversary than a peace-maker.
However, in our adversarial role, I would like to point out that the Conservancy does
attempt to develop pragmatic positions that balance economic, social, cultural, and
environmental values.
In preparing for my role as a mediator, I've begun some reading and discussion on
the process. It appears that the art of conflict resolution that attempts to make botl-
sides believe realistically that they've won is relatively new.
Traditionally, the practice of conflict resolution has been of the win or lose kind.
And with the Corps of Engineers, it basically still is. Either the damn dam gets
built or the damn dam doesn't. Impact mitigation isn't resolution. Castor oil tastes
better with sugar than without it, but it's still castor oil.
I pick on the Corps, but the fact is that as mandates to give ample consideration to
all of the multiplicities of values that we as groups and individuals hold are
implemented, so are the opportunities for environmental conflict increased. If,
as some would like to see it, we only considered the dollar cost vs. the dollar
benefit, the issues are much easier to identify and resolve.
That may come to pass, but at the moment there are still mandates which call for
proper consideration of differing perceptions and values. So there are inevitable
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conflicts. And the numbers are escalating.
Another factor ,is that the decisions are no longer simple cmes- It's no longer
a question of clean air or clean water, but how clean and at what cost.
Solutions arrived at in court are of the win/lose type and are expensive and time
consuming.
So the experts suqqest for decision makers, that as we examine and wrestle with
difficult issues, to avoid the costly delays, we should give more attention to the
process by which decisions are reached.
Obviously the EIS processes and various standards and procedures and guidelines
were originally intended to help in the identification and resolution of conflicts.
Unfortunate!v manv aqencies and applicants view them as burdens or obstacles to be
dean witha/quickly as possible in order to get on with ^business at hand, or,
even worse, as a vehicle for justifying decisions a y
When that happens, the EIS document simply becores a weapon to be used by both sides
as the opposers simply rummage through it for addUional evidence that the prepares
is a charla ton or, even worse, incompetent.
So the experts are suggesting that a first step in conflict resolution is to complet
the process in a professional way and with an open mind. I agree with that, but
wollld also suggest that the evaluators of the documents, including the opponents,
do the same.
Conflict in and of itself, isn't necessarily bad. In fact, properly channeled and
constructively used, it can be healthy. Better decisions can often be reached th^0uah
a healthy dialogue that includes disagreement. It's when conflict reaches the Point.
where violence becomes a real possibility, as it has in Georgia over the issue of
hazardous waste, or when conflict causes the opponents to be so polarized they car,not
resolve the dispute themselves, or when the courts are the resort of resolution and
costs escalate beyond reason -- then, in those instances, we have a problem.
The experts suqgests that in those instances we look for different mechanisms of
resolution The terms used are "cooperative decision making," "conflict management »
— all of which imply a desire on the part of both parties to amicably resolve th© *
issue, or at least to recognize an inability to resolve it.
So the challenge then is how to achieve sound environmental policies which have a
broad base of public support and which take into account the full range of values.
I suggest, as a first step, a reordering of laws, policies, regulations, and procgs
that recognize environmental policies as an objective and are written in clear, p^eciSe
and simple language so that they are implementable.
I agree with the experts and suggest as a next step a willingness to use the data
collection, analysis, and decision process with integrity.
And, third, I believe that to avoid unnecessary delays and costs when good intenti0n
and'efforts fail to achieve a resolution, that a neutral third party can become a
viable alternative to litigation.
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Some years ago I was asked to develop a conference to draw participants from the
Eastern U.S. together to discuss, identify and, where possible, offer mechanisms
for resolution of issues dealing with the Forest Service's RARE II process.
The first step was to bring a steering committee together to decide on the detailed
objectives, subjects, and agenda for the conference. The second step was to
recognize that the committee represented different perspectives on how the forests
should be managed and used, i.e., timber cutting, off-road vehicle users and wilder-
ness advocates.
The third step was to employ a neutral third party — a mediator to deal with the
inevitable conflicts. He was Gerald Cormick who is recognized as a pioneer in the con-
flict management field. As a result we were able to move through the disagreements
and had a successful conference.
Malcolm Rivkin, a successful project mediator, is a proponent of the EIS process.
He says, "It (EIS) has done much to facilitate accommodation and compromise. The
EIS can set the stage for negotiation in project design and management and, most
importantly, can remove some powerful constraints to governmental and citizen
participation in the negotiation process".
Two points - one - EIS litigation is frequently over procedural issues, not substantive
(ones), whereas other mechanisms can focus on issues and concensus agreement.
Second point - Citizen participation - "people's democracy" is in jeopardy in the
present administration. Yet, properly used early in the decision process, citizen
participation can help focus on the identification of issues and on consensual
agreement.
There are some processes known collectively as non-adversarial forms of environmental
conflict management. They include conflict anticipation, fact finding, consensus
building, and mediation. They, along with meaningful use of public participation,
offer some alternative processes to litigation.
Since we are short a person, I will add some thoughts on EIS problems which
promote conflict or distrust to my original prepared remarks.
1. Often sham exercises to cover your behind on decisions already reached.
2. Decisions made and implemented w/o adequate public promotion/sewer lines.
3. Too often agencies use no significant finding documents - environmental
assessment - simply to avoid the work of an EIS. Particularly when the project
is economically marginal.
4. Failure to involve interested groups early on scoping or conflict parti-
cipation phase of a project.
5. Failure to recognize citizens no longer trust Governmental Bureaucracies or
elected officials to make decisions that benefit the most with the least cost
and negative impact.
6. EIS's that devote more than 75% of the effort and more than 50% of the
documentation to the "preferred" of several alternatives.
7. A belief by citizens that political pressures have more weight than all the
support data does.
-------
8. Support data that is apparently inadequate, erroneous, or skewed.
9. Academic prostitutes who give credibility to shoddy data or conclusions.
10. Professionals (including scientists) who let their personal biases interfere
with their judgment.
11. Notice and timing of review process of draft or final documents - an 8
year study cannot be properly evaluated, and a complete response prepared in
30-90 days.
12. A failure to give proper weight to cost of money in cost/benefit analysis -
18%,not 4 or 5.
13. Segmentation - highway or other projects which can be broken down into
pieces for evaluation - you get to build both ends which makes it difficult
to oppose the middle.
14. The agency doing the implementation of a project is sometimes the agency
doing the planning.
So the challenge as I said earlier is "to achieve sound environmental policies
and projects which have broad public support and which take into account the
range of values in our society".
NEPA and the EIS process and mandated public participation are all significant
steps to meeting those challenges.
I submit however that better conflict management techniques are necessary to re-
place litigation or the threat of it. I will mention some of these techniques
again. All using neutral third parties.
a. Conflict anticipation - scoping to foresee problems and issues.
b. Joint fact finding - an effort to narrow issues to pertinent ones.
c. Identifying common objectives - consensus building - an attempt to
reach agreement on critical facts and issues.
d. Mediator - mediation - an attempt to focus discussion and reach some
decisions on alternatives.
For example: we'll build a little damn dam instead of a big damn dam as long
as we can build a damn dam.
Thank you
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Federal Regi8ter_/_Vol. 46. No. 55 / Monday, March 23, 1981 / Rules and Regulation*
COUNCIL ON ENVIRONMENTAL
QUALITY
40 CFR Parts 1500, 1501, 1502, 1503,
1504, 1505, 1506, 1507, and 1508
Forty Most Asked Questions
Concurring CEQ's Nstfonsl
Environmental Policy Act Regulations
March 17.1991.
aocncy: Council on Environmental
Quality. Executive Office of the
President.
action; Information Only: Publication of
Memorandum to Agencies Containing
Answers to 40 Moat Asked Questions on
NEPA Regulations.
r. The Council on
Environmental Quality, as part of its
oversight of implementation of the
National Environmental Policy Act held
meetings in the ten Federal regions with
Federal. State, and local officials to
discuss administration of the
implementing regulations. The forty
most asked questions were compiled in
a memorandum to agencies for the
information of relevant officials. In
order efficiently to respond to public
inquiries this memorandum is reprinted
in this issue of the Federal Register.
pok pumrwc* wwowmation contact
Nicholas C. Yost. General Counsel.
Council on Environmental Quality, 722
lackson Place NW., Washington, D.C.
20006: 202-395-5750.
March 16.1981.
Memorandum for Federal NEPA
Liaisons, Federal, State, and Local
Officials and Other Persons Involved in
the NEPA Process
Subject: Questions and Answers About
the NEPA Regulations
During June and July of 1980 the
Council on Environmental Quality, with
the assistance and cooperation of EPA's
EIS Coordinators from the ten EPA
regions, held one-day meetings with
federal, state and local officials in the
(en EPA regional offices around the
country. In addition, on July 10.1980.
CEQ conducted a similar meeting for the
Washington. D.C. NEPA liaisons and
persons involved in the NEPA process.
At these meetings CEQ discussed (a) the
results of its 1980 review of Draft EISs
issued since the July 30,1979 effective
date of the NEPA regulations, (b) agency
compliance with the Record of Decision
requirements in Section 1505 of the
NEPA regulations, and (c) CEQ's
preliminary findings on how the scoping
process is working. Participants at these
meetings received copies of materials
prepared by CEQ summarizing its
oversight and findings.
These meetings also provided NEPA
liaisons and other participants with an
• opportunity to ask questions about
NEPA and the practical application of
the NEPA regulations. A number of
these questions were answered by CEQ
representatives at the regional meetings.
In response to the many requests from
the agencies and other participants.
CEQ has compiled forty of the most
important or most frequently asked
questions and their answers and
reduced them to writing. The answers
were prepared by the General Counsel
of CEQ in consultation with the Office
of Federal Activities of EPA. These
answers, of course, do not impose any
additional requirements beyond thoae of
the NEPA regulations. This document
does not represent new guidance under
the NEPA regulations, but rather makes
generally available to concerned
agencies and private individuals the
answers which CEQ has already given
at the 1960 regional meetings. The
answers also reflect the advice which
the Council has given over the past two
years to aid agency staff and
consultants in their day-to-day
application of NEPA and the regulations.
CEQ has also received numerous
inquiries regarding the scoping process.
CEQ hopes to isaue written guidance on
scoping later this year on the basis of its
special study of scoping, which is
nearing completion.
Nichols* C. Yost.
Gtnani Counami.
Index
1. Range of Alternatives
2. Alternatives Outaide the Capability
of Applicant or Juriadictian of Agency
3. No-Action Alternative
4. Agency's Preferred Alternative
5. Proposed Action v. Preferred
Alternative
0. Environmentally Preferable
Alternative
7. Difference Between Sections of EIS
on Alternatives and Environmental
Consequences
8. Early Application of NEPA
9. Applicant Who Needs Other
Permits
10. Limitations on Action During 30-
Day Review Period for Final EIS
11. Limitations on Actions by an
Applicant During EIS Process
12. Effective Date and Enforceability
of the Regulations
13. Use of Scoping Before Notice of
Intent to Prepare EIS
14. Rights and Responsibilities of
Lead and Cooperating Agencies
15. Commenting Responsibilities of
EPA
16. Third Party Contracts
17. Disclosure Statement to Avoid
Conflict of Interest
18. Uncertainties About Indirect
Effects of A Proposal
19. Mitigation Measures
20. Worst Case Analysis
21. Combining Environmental and
Planning Documents
22. State and Federal Agencies as
Joint Lead Agencies
23. Conflicts of Federal Proposal With
Land Use Plans, on Policies and
Controls
24. Environmental Impact Statements
on Policies. Plans or Programs
25. Appendices and Incorporation by
Reference
26. Index and Keyword Index In EISs
27. List of Preparers
28. Advance or Xerox Copies of EIS
29. Responses to Comments
30. Adoption of EISs
31. Application of Regulations to
Independent Regulatory Agencies
32. Supplements To Old EISs
33. Referrals
34. Records of Decision
35. Time Required for the NEPA
Process
36. Environmental Assessments (EA)
37. Findings of No Significant Impact
(FONSI]
38. Public Availability of EAs v.
FONSIa
39. Mitigation Measures Imposed in
EAs and FONSIs
40. Propriety of Issuing EA When
Mitigation Reduces Impacts
Questions and Answers About the
NEPA Regulations (1961)
la. Q. What is meant by "range of
alternatives" as referred to in Sec.
1505.1(e)? '
A. "Hie phrase "range of alternatives"
refers to the alternatives discussed in
environmental documents. It includes all
reasonable alternatives, which must be
rigorously explored and objectively
evaluated, as well as those other
alternatives, which are eliminated from
detailed study with a brief discussion of
the reasons for eliminating them.
Section 1502.14. A decisionmaker must
not consider alternatives beyond the
range of alternatives discussed in the
relevant environmental documents.
Moreover, a decisionmaker must, in fact,
consider all the alternatives discussed in
an EIS. Section 1505.1(e).
lb. Q. How many alternatives have to
be discussed when there is an infinite
number of possible alternatives?
1 Reference* throughout the document are to the
Council on Environments! Quality'! Regulations For
Implementing The Procedural Provisions o( the
Notional Environmental Policy Act. 40 CFR Parts
1300-1308.
-73-
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Federal Register / Vol. 48, No. 55 / Monday, March 23. 1981 / Rules and Regulations 18027
A. For some proposals there may exist
a very large or even an infinite number
of possible reasonable alternatives. For
example, a proposal tq designate
wilderness areas within a National
Forest could be said to involve an
infinite number of alternatives from 0 to
100 percent of the forest. When there are
potentially a very large number of
alternatives, only a reasonable number
of examples, covering the full spectrum
of alternatives, must be analyzed and
compared in the EIS. An appropriate
series of alternatives might include
dedicating 0. 10. 30, 50. 70. 90, or 100
percent of the Forest to wilderness.
What constitutes a reasonable range of
alternatives depends on the nature of
the proposal and the facts in each case.
2a. Q. If an EIS is prepared in
connection with an application for a
permit or other federal approval, must
the EIS rigorously analyze and discuss
alternatives that are outside the
capability of the applicant or can it be
limited to reasonable alternatives that
can be carried out by the applicant?
A. Section 1502.14 requires the EIS to
examine all reasonable alternatives to
the proposal. In determining the scope of
alternatives to be considered, the
emphasis is on what is "reasonable"
rather than on whether the proponent or
applicant likes or is itself capable of
carrying out a particular alternative.
Reasonable alternatives include those
that are practical or feasible from the
technical and economic standpoint and
using common sense, rather than simply
desirable from the standpoint of the
applicant.
2b. Q. Must the EIS analyze
alternatives outside the jurisdiction or
capability of the agency or beyond what
Congress has authorized?
A. An alternative that is outside the
legal jurisdiction of the lead agency
must still be analyzed in the EIS if it is
reasonable. A potential conflict with
local or federal law does not necessarily
render an alternative unreasonable,
although such conflicts must be
considered. Section 1506.2(d).
Alternatives that are outside the scope
of what Congress has approved or
funded must still be evaluated in the EIS
if they are reasonable, because the EIS
may serve as the basis for modifying the
Congressional approval or funding in
light of NEPA's goals and policies.
Section 1500.1(a).
3. Q. What does the "no action"
alternative include? If an agency is
under a court order or legislative
command to act, must the EIS address
the "no action" alternative?
A. Section 1502.14(d) requires the
alternatives analysis in the EIS to
"include the alternative of no action."
There are two distinct interpretations of
"no action" that must be considered,
depending on the nature of the proposal
being evaluated. The first situation
might involve an action such as
updating a land management plan where
ongoing programs initiated under
existing legislation and regulations will
continue, even as new plans are
developed. In these cases "no action" is
"no change" from current management
direction or level of management
intensity. To construct an alternative
that is based on no management at all
would be a useless academic exercise.
Therefore, the "no action" alternative
may be thought of in terms of continuing
with the present course of action until
that action is changed. Consequently,
projected impacts of alternative
management schemes would be
compared in the EIS to those impacts
projected for the existing plan. In this
case, alternatives would include
management plans of both greater and
lesser intensity, especially greater and
lesser levels of resource development.
The second interpretation of "no
action" is illustrated in instances
involving federal decisions on proposals
for projects. "No action" in such cases
would mean the proposed activity
would not take place, and the resulting
environmental effects from taking no
action would be compared with the
effects of permitting the proposed
activity or an alternative activity to go
forward.
Where a choice of "no action" by the
agency would result in predictable
actions by others, this consequence of
the "no action" alternative should be
included in the analysis. For example, if
denial of permission to build a railroad
to a facility would lead to construction
of a road and increased truck traffic, the
EIS should analyze this consequence of
the "no action" alternative.
In light of the above, it is difficult to
think of a situation where it would not
be appropriate to address a "no action"
alternative. Accordingly, the regulations
require the analysis of the no action
alternative even if the agency is under a
court order or legislative command to
act. This analysis provides a
benchmark, enabling decisionmakers to
compare the magnitude of
environmental effects of the action
alternatives. It is also an example of a
reasonable alternative outside the
jurisdiction of the agency which must be
analyzed. Section 1502.14(c). See
Question 2 above. Inclusion of such an
analysis in the EIS is necessary to. •
inform the Congress, the public, and the
President as intended by NEPA. Section
1500.1(a).
4a. Q. What is the "agency's preferred
alternative"?
A. The "agency's preferred
alternative" is the alternative which the
agency believes would fulfill its
statutory mission qnd responsibilities,
giving consideration to economic,
environmental, technical and other
factors. The concept of the "agency's
preferred alternative" is different from
the "environmentally preferable
alternative." although in some cases one
alternative may be both. See Question 6
below. It is identified so that agencies
and the public can understand the lead
agency's orientation.
4b. Q. Does the "preferred
alternative" have to be identified in the
Draft EIS and the Final EIS or just in the
Final EIS?
A. Section 1502.14(e) requires the
section of the EIS on alternatives to
"identify the agency's preferred
alternative if one or more exists, in the
draft statement, and identify such
alternative in the final statement . . ."
This means that if the agency has a
preferred alternative at the Draft EIS
stage, that alternative must be labeled
or identified as such in the Draft EIS. If
the responsible federal official in fact
has no preferred alternative at the Draft
EIS stage, a preferred alternative need
not be identified there. By the time the
Final EIS is filed. Section 1502.14(e)
presumes the existence of a preferred
alternative and requires its
identification in the Final EIS "unless
another law prohibits the expression of
such a preference."
4c. Q. Who recommends or
determines the "preferred alternative?"
A. The lead agency's official with line
responsibility for preparing the EIS and
assuring its adequacy is responsible for
identifying the agency's preferred
altereative(s). The NEPA regulations do
not dictate which official in an agency
shall be responsible for preparation of
EISs, but agencies can identify this
official in their implementing
procedures, pursuant to Section 1507.3.
Even though the agency's preferred
alternative is identified by the EIS
preparer in the EIS. the statement must
be objectively prepared and not slanted
to support the choice of the agency's
preferred alternative over the other
reasonable and feasible alternatives.
5a. Q. Is the "proposed action" the
same thing as the "preferred
alternative"?
A. The "proposed action" may be. but
is not necessarily, the agency's
"preferred alternative." The proposed
action may be a proposal in its initial
form before undergoing analysis in the
EIS process. If the proposed action is
-------
preferable alternatives by providing
their views in comments on the Draft
E1S. Through the identification of the
environmentally preferable alternative,
the decisionmaker is clearly faced with
a choice between that alternative and
others, and must consider whether the
decision accords with the
Congressionally declared policies of the
Act.
6b. Q. Who recommends or
determines what is environmentally
preferable?
A. The agency EIS staff is encouraged
to make recommendations of the
environmentally preferable
altemative(s) during EIS preparation. In
any event the lead agency official
responsible for the EIS is encouraged to
identify the environmentally preferable
altemative(s) in the EIS. In ail cases,
commentors from other agencies and the
public are also encouraged to address
this question. The agency must identify
the environmentally preferable
alternative in the ROD.
7. Q. What is the difference between
the sections in the EIS on "alternatives"
and "environmental consequences"?
How do you avoid duplicating the
discussion of alternatives in preparing
these two sections?
A. The "alternatives" section is the
heart of the EIS. This section rigorously
explores and objectively evaluates all
reasonable alternatives including the
proposed action. Section 1502.14. It
should include relevant comparisons on
environmental and other grounds. The
"environmental consequences" section
of the EIS discusses the specific,
environmental impacts or effects of each
of the alternatives including the
proposed action. Section 1902.16. In
order to avoid duplication between
these two sections, most of the
"alternatives" section should be devoted
to describing and comparing the
alternatives. Discussion of the
environmental impacts of these
alternatives should be limited to a
concise descriptive summary of such
impacts in a comparative form,
including charts or tables, thus sharply
defining the issues and providing a clear
basis for choice among options. Section
1502.14. The "environmental
consequences" section should be
devoted largely to a scientific analysis
of the direct and indirect environmental
effects of the proposed action and of
each of the alternatives. It forms the
analytic basis for the concise
comparison in the "alternatives"
section. .
S. Q- Section 1501.2(d) of the NEPA
regulations requires agencies to provide
for the early application of NEPA to
cases where actions are planned by
18028 F«l^ / Vol. 48. No. S5 / Monday. March 23. 1981 / Rule, and Herniation.
internally generated..such as preparing a
land management plan, the proposed
action might end up as the agency's
preferred alternative. On the other hand
the proposed action may be granting an
application to a non-federal entity for a
permit. The agency may or may not have
a "preferred alternative" at the Draft EIS
stage (see Question 4 above). In that
case the agency may decide at the Final
EIS stage, on the basis of the Draft EIS
and the public and agency comments,
that an alternative other than the
proposed action is the agency's
"preferred alternative."
5b. Q. Is the analysis of the "proposed
action" in an EIS to be treated
differently from the analysis of
alternatives?
A. The degree of analysis devoted to
each alternative in the EIS is to be
substantially similar to that devoted to
the "proposed action." Section 1502.14 is
titled "Alternatives including the
proposed action" to reflect such
comparable treatment. Section
1502.14(b) specifically requires
"substantial treatment" in the EIS of
each alternative including the proposed
action. This regulation does not dictate
an amount of information to be
provided, but rather, prescribes a level
of treatment, which may in turn require
varying amounts of information, to
enable a reviewer to evaluate and
compare alternatives.
Ba. Q. What is the meaning of the term
"environmentally preferable
alternative" as used in the regulations
with reference to Records of Decision?
How is the term "environment" used in
the phrase?
A. Section 1505.2(b) requires that, in
cases where an EIS has been prepared,
the Record of Decision (ROD) must
identify all alternatives that were
considered. ". . . specifying the
alternative or alternatives which were
considered to be environmentally
preferable." The environmentally
preferable alternative is the alternative
that will promote the national
environmental policy as expressed in
NEPA's Section 101. Ordinarily, this
means the alternative that causes the
least damage to the biological and
physical environment; it also means the
alternative which best protects,
preserves, and enhances historic,
cultural, and natural resources.
The Council recognizes that the
identification of the environmentally
preferable alternative may involve
difficult judgments, particularly when
one environmental value must be *
balanced against another. The public
and other agencies reviewing a Draft
EIS can assist the lead agency to
develop and determine environmentally
private applicants or non-Federal
entities and are. at some stage, subject
to federal approval of permits, loans,
loan guarantees, insurance or other
actions. What must and can agencies do
to apply NEPA early in these cases?
A. Section 1501.2(d) requires federal
agencies to take steps toward ensuring
that private parties and state and local
entities initiate environmental studies as
soon as federal involvement in their
proposals can be foreseen. This section
is intended to ensure that environmental
factors are considered at an early stage
in the planning process and to avoid the
situation where the applicant for a
federal permit or approval has
completed planning and eliminated all
alternatives to the proposed action by
the time the EIS process commences or
before the EIS process has been
completed.
Through early consultation, business
applicants and approving agencies may
gain better appreciation of each other's
needs and foster a decisionmaking
process which avoids later unexpected
confrontations.
Federal agencies are required by
Section 1507.3(b) to develop procedures
to cany out Section 1501.2(d). The .
procedures should include an "outreach
program", such as a means for
prospective applicants to conduct pre-
application consultations with the lead
and cooperating agencies. Applicants
need to find out. in advance of project
planning, what environmental studies or
other information will be required, and
what mitigation requirements are likely,
in connecton with the later federal
NEPA process. Agencies should
designate staff to advise potential
applicants of the agency's NEPA
information requirements and should
publicize their pre-application
procedures and information
requirements in newsletters or other
media used by potential applicants.
Complementing Section 1501.2(d),
Section 1506.5(a) requires agencies to
assist applicants by outlining the types
of information required in those cases
where the agency requires the applicant
to submit environmental data for
possible use by the agency in preparing
an EIS.
Section 1506.5(b) allows agencies to
authorize preparation of environmental
assessments by applicants. Thus, the
procedures should also include a means
for anticipating and utilizing applicants'
environmental studies or "early
corporate environmental assessments"
to fulfill some of the federal agency's
NEPA obligations. However, in such
cases the agency must still evaluate
independently the environmental issues
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Federal Register / Vol. 48, No. 55 / Monday, March 23, 1981 / Rules and Regulations
18Q28
and take responsibility for the
environmental assessment.
These provisions are intended to
encourage and enable private and other
non-federal entities to build
environmental considerations into their
own planning processes in a way that
facilitates the application of NEPA and
avoids delay.
9. Q. To what extent must an agency
inquire into whether an applicant for a
federal permit, funding or other approval
of a proposal will also need approval
from another agency for the same
proposal or some other related aspect of
it?
A. Agencies must integrate the NEPA
process into other planning at the
earliest possible time to insure that
planning and decisions reflect
environmental values, to avoid delays
later in the process, and to head off
potential conflicts. Specifically, the
agency must "provide for cases where
actions are planned by . . . applicants,"
so that designated staff are available to
advise potential applicants of studies or
other information that will foreseeably
be required for the later federal action;
the agency shall consult with the
applicant if the agency foresees its own
involvement in the proposal; and it shall
insure that the NEPA process
commences at the earliest possible time.
Section 1501.2(d). (See Question 8.)
The regulations emphasize agency
cooperation early in the NEPA process.
Section 1501.6. Section 1501.7 on
"scoping" also provides that all affected
Federal agencies are to be invited to
participate in scoping the environmental
issues and to identify the various
environmental review and consultation
requirements that may apply to the
proposed action. Further, Section
1502.25(b) requires that the draft EIS list
all the federal permits, licenses and
other entitlements that are needed to
implement the proposal.
These provisions create an affirmative
obligation on federal agencies to inquire
early, and to the maximum degree
possible, to ascertain whether an
applicant is or will be seeking other
federal assistance or approval, or
whether the applicant is waiting until a
proposal has been substantially
developed before requesting federal aid
or approval.
Thus, a federal agency receiving a
request for approval or assistance
should determine whether the applicant
has filed separate requests for federal
approval or assistance with other
federal agencies. Other federal agencies
that are likely to become involved
should then be contacted, and the NEPA
process coordinated, to insure an early
and comprehensive analysis of the
direct and indirect effects of the
proposal and any related actions. The
agency should inform the applicant that
action on its application may be delayed
unless it submits all other federal
applications (where feasible to do so),
so that all the relevant agencies can
work together on the scoping process
and preparation of the EIS.
10a. Q. What actions by agencies
and/or applicants are allowed during
EIS preparation and during the 30-day
review period after publication of a final
EIS?
A. No federal decision on the
proposed action shall be made or
recorded until at least 30 days after the
publication by EPA of notice that the
particular EIS has been filed with EPA.
Sections 1505.2 and 1506.10. Section
1505.2 requires this decision to be stated
in a public Record of Decision.
Until the agency issues its Record of
Decision, no action by an agency or an
applicant concerning the proposal shall
be taken which would have an adverse
environmental impact or limit the choice
of reasonable alternatives. Section
1506.1(a). But this does not preclude
preliminary planning or design work
which is needed to support an
application for permits or assistance.
Section lS06.1(d).
When the impact statement in
question is a program EIS, no major
action concerning the program may be
taken which may significantly affect the
quality of the human environment
unless the particular action is justified
independently of the program, is
accompanied by its own adequate
environmental impact statement and
will not prejudice the ultimate decision
on the program. Section 1506.1(c).
10b. Q. Do these limitations on action
(described in Question 10a) apply to
state or local agencies that have
statutorily delegated responsibility for
preparation of environmental documents
required by NEPA, for example, under
the HUD Block Grant program?
A. Yes, these limitations do apply,
without any variation from their
application to federal agencies.
11. Q. What actions must a lead
agency take during the NEPA process
when it becomes aware that a non-
federal applicant is about to take an
action within the agency's jurisdiction
that would either have an adverse
environmental Impact or limit the choice
of reasonable alternatives (e.g„
prematurely commit money or other
resources towards the completion of the
proposal)?
A. The federal agency muat notify the
applicant that the agency will take
strong affirmative steps to insure that
the objectives and procedures of NEPA
are fulfilled. Section 1506.1(b). These
steps could include seeking injunctive
measures under NEPA, or the use of
sanctions available under either the
agency's permitting authority or statutes
setting forth the agency's statutory
mission. For example, the agency might
advise an applicant that if it takes such
action the agency will not process its
application.
12a. Q. What actions are subject to
the Council's new regulations, and what
actions are grandfathered under the old
guidelines?
A. The effective date of the Council* 8
regulations was July 30,1979 (except for
certain HUD programs under the
Housing and Community Development
Act, 42 U.S.C. 5304(h), and certain state
highway programs that qualify under
Section 102(2)(D) of NEPA for which the
regulations became effective on
November 30,1979). All the provisions
of the regulations are binding as of that
date, including those covering
decisionmaking, public participation,
referrals, limitations on actions, EIS
supplements, etc. For example, a Record
of Decision would be prepared even for
decisions where the draft EIS was filed
before July 30,1979.
But in determining whether or not the
new regulations apply to the preparation
of a particular environmental document,
the relevant factor is the date of filing of
the draft of that document. Thus, the
new regulations do not require the
redrafting of an EIS or supplement If the
draft EIS or supplement was filed before
July 30,1979. However, a supplement
prepared after the effective date of the
regulations for an EIS issued in final
before tHe effective date of the
regulations would be controlled by the
regulations.
Even though agencies are not required
to apply the regulations to an EIS or
other document for which the draft wn
filed prior to July 30,1979, the
regulations encourage agencies to follow
the regulations "to the fullest extent
practicable," i.e„ if it is feasible to do so.
in preparing the final document. Section*
1506.12(a).
12b. Q. Are projects authorized by
Congress before the effective date of the
Council's regulations grandfathered?
A. No. The date of Congressional
authorization for a project is not
determinative of whether the Council's
regulations or former Guidelines apply
to the particular proposal. No
incomplete projects or proposals of any
kind are grandfathered in whole or in
part. Only certain environmental
documents, for which the draft was
issued before th« effective date of the
regulations, are grandfathered and
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subject to the Council's former
Guidelines.
12c. Q. Can a violation of the
regulations give rise to a cause of
action?
A- While a trivial violation of the
regulations would not give rise to an *
independent cause of action, such a
cause of action would arise from a
substantial violation of the regulations.
Section 1500-3-
13. Q. Can the scoping process be
used in connection with preparation of
an environmental assessment i.e.,
before both the decision to proceed with
an EIS and publication of a notice of
intent?
A. Yes. Scoping can be a useful tool
for discovering alternatives to a
Eroposai. or significant impacts that may
ave been overlooked. In cases where
an environmental assessment is being
prepared to help an agency decide
whether to prepare an EIS, useful
information might result from early
participation by other agendas and the
public in a scoping process.
The regulations state that the scoping
process is to be preceded by a Notice of
Intent (NOI) to prepare an EIS. But that
la only the mi"l'ni'"n requirement
Scoping may be initiated earlier, as long
as there is appropriate public notice and
enough information available on the
proposal so that the public and relevant
agencies can participate effectively.
However, scoping that is done before
the assessment and In aid of Its
preparation, cannot substitute for the
normal scoping process after publication
of the NOI unless the earlier public
notice stated clearly that this possibility
was under consideration, and the NOI
expressly provides that written
comments on the scope of alternatives
and impacts will still be considered.
14a. Q. What are the respective
rights and responsibilities of lead and
cooperating agencies? What letters and
memoranda must be prepared?
A. After a lead agency has been
designated (Sec. 1501.5), that agency has
the responsibility to solicit cooperation
from other federal agencies that have
jurisdiction by law or special expertise
on any environmental issue that should
be addressed in the EIS being prepared.
Where appropriate, the lead agency
should seek the cooperation of state or
local agencies of similar qualifications.
When the proposal may affect an Indian
reservation, the agency should consult
with the Indian tribe. Section 1508.5. The
request for cooperation should come at
the earliest possible time in the NEPA
process.
After discussions with the candidate
cooperating agencies, the lead agency
and the cooperating agendas are to
determine by letter or by memorandum
which agendas will undertake
cooperating responsibilities. To the
extant possible at this stage,
responsibilities for specific issues
should be assigned. The allocation of
responsibilities will be completed during
scoping. Section 1301.7(a)(4).
Cooperating agendas must assume
responsibility for tin development of
information and the preparation of
environmental analyses at the request of
the lead agency. Section 15014(b)(3).
Cooperating agendes are now required
by Section 1501.0 to devote staff
resources that were normally primarily
uaed to critique or comment on the Draft
EIS after its preparation, much earlier in
the NEPA procasa primarily at tha
scoping and Draft ELS preparation
stages. If a cooperating agency
determines that its resource limitations
preclude any involvement, or the degree
of involvement (amount of work) -
requested by tha lead agency, it must so
inform the laad agency in writing and
submit a copy of this correspondence to
the Council. Section 1501.6(c).
In other words, tha potential
cooperating agency must dedde eariy if
it is able to devote any of its resources
to a particular proposal. For this reason
the regulation states that an agency may
reply to a request for cooperation that
"other program commitments preclude
any involvement or the degree of
involvement requested in tha action that
is the subject of the environmental
impact statement." (Emphasis added).
The regulation refer* to tha "action."
rather than to tha EIS, to darify that tha
agency is taking itself out of all phases
of the federal action, not Just draft EIS
preparation. This means that the agency
has determined that it cannot be
involved in the later stages of EIS
review and comment as well as
decisionmaking on the proposed action.
Por this reason, cooperating agendas
with jurisdiction by law (those which
have permitting or other approval
authority) cannot opt out entirely of the
duty to cooperate on the EIS. See also
Question IS, relating specifically to the
responsibility of EPA.
14b. Q. How are disputes resolved
between lead and cooperating agendes
concerning the scope and level of detail
of analysis and the quality of data in
impact statements?
A Such disputes are resolved by the
sgencies themselves. A lead agency, of
course, has the ultimate responsibility
for the content of an EIS. But it is
supposed to use the environmental
analysis and recommendations of
cooperating agendas with jurisdiction
by law or spedal expertise to the
maximum extant posaible. consistent
with its own responsibilities as lead
agency. Section 1501.6(a)(2).
If the lead agency leaves out a
significant issue or ignores the advice
and expertise of the cooperating agency,
the EIS may be found later to be
inadequate. Similarly, where
cooperating agendes have their own
dedsions to make and they intend to
adopt the environmental impact
statement and base their dedsions on it
one document should include all of the
information necessary for the dedsions
by the cooperating agendas. Otherwise
they may be forced to duplicate the EIS
process by issuing a new, more complete
EIS or Supplemental EIS, even though
tha original EIS could have sufficed if it
had been properly done at the outsat
Thus, both lead and cooperating
agendas have a stake in producing a
document of good quality. Cooperating •
agendea also have a doty to partidpata
fully in tha scoping process to ensure
that the appropriate range of issues is
determined eariy in the EIS process.
Because the EIS is not the Record of
Decision, but instead constitutes tha
information and analysis on which to
base a decision, disagreements about
conclusions to be drawn from tha EIS
need not Inhibit agendas from issuing a
joint dominant or adopting another'
agency's EIS, if the analysis is adequate.
Thus, if each agency has its own
"preferred alternative," both can b«
identified in tha EIS. Similarly, a
cooperating agency with jurisdiction by
law may determine in its own ROD that
alternative A is the environmentally
preferable action, even though the lead
agency has dedded in its separate ROD
that Alternative B is environmentally
preferable.
14c. Q. What are the specific
responsibilities of federal and state
cooperating agendes to review draft
EISs?
A. Cooperating agencies (La., agendes
with jurisdiction by law or special
expertise) and agendes that are
authorized to develop or enforce
environmental standards, must comment
on environmental impact statements
within their jurisdiction, expertise or
authority. Sections 1503.2,1508.5. If a
cooperating agency is satisfied that its
views are adequately reflected in the
environmental impact statement it
should simply comment accordingly.
Conversely, if the cooperating agency
determines that a draft EIS is
incomplete, inadequate or inaccurate, or
it has other comments, it should
promptly make such comments,
conforming to the requirements of
specifidty in section 1503.3.
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14d. Q. How is the lead agency to
treat the comments of another agency
with jurisdiction by law or special
expertise which has failed or refused to
cooperate or participate in scoping or
CIS preparation?
A A lead agency has the
responsibility to respond to all
substantive comments raising significant
issues regarding a draft EiS. Section
1503.4. However, cooperating agencies
are generally under an obligation to
raise issues or otherwise participate in
the EIS process during scoping and EIS
preparation if they reasonably can do
so. In practical terms, if a cooperating
agency fails to cooperate at the outset,
such as during scoping, it will find that
its comments at a later stage will not be
as persuasive to the lead agency.
15. Q. Are EPA's responsibilities to
review and comment on the
environmental effects of agency
proposals under Section 309 of the Clean
Air Act independent of its responsibility
as a cooperating agency?
A. Yes. EPA has an obligation under
Section 309 of the Clean Air Act to
review and comment in writing on the
environmental impact of any matter
relating to the authority of the
Administrator contained in proposed
legislation, federal construction projects,
other federal actions requiring EISs. and
new regulations. 42 U.S.C. Sec. 7609.
This obligation is independent of its role
as a cooperating agency under the
NEPA regulations.
18. Q. What is meant by the term
"third party contracts" in connection
with the preparation of an EIS? Sec
Section 1508 5(c). When can "third party
contracts" be used?
A. As used by EPA and other
agencies, the term "third party contract"
refers to the preparation of EISs by
contractors paid by the applicant. In the
case of an EIS for a National Pollution
Discharge Elimination System (NPDES)
permit, the applicant, aware in the early
planning stages of the proposed project
of the need for an EIS. contracts directly
with a consulting firm for its
preparation. See 40 C.F.R. 6.604(g). The
"third party" is EPA which, under
Section 1508.5(c), must select the
consulting firm, even though the
applicant pays for the cost of preparing
the EIS. The consulting firm is
responsible to EPA for preparing an EIS
that meets the requirements of the
NEPA regulations and EPA's NEPA
procedures. It is in the applicant's
interest that the EIS comply with the
law so that EPA can take prompt action
on the NPDES permit application. The
"third party contract" method under
fPA's NEPA procedures is purely
voluntary, though most applicants have
found it helpful in expediting
compliance with NEPA.
If a federal agency uses "third party
contracting," the applicant may
undertake the necessary paperwork for
the solicitation of a field of candidates
under the agency's direction, so long aa
the agency complies with Section
1506.5(c). Federal procurement
requirements do not apply to the agency
because it incurs no obligations or costs
under the contract nor does the agency
procure anything under the contract
17a. Q. If an EIS is prepared with the
assistance of a consulting firm, the firm
must execute a disclosure statement.
What criteria must the firm follow in
determining whether it has any
"financial or other interest in the
outcome of the project" which would
caure a conflict of interest?
A. Section 1506.5(c). which specifies
that a consulting firm preparing an EIS
must execute a disclosure statement
does not define "financial or other
interest in the outcome of the project."
The Council interprets this term broadly
to cover any known benefits other than
general enhancement of professional
reputation. This includes any financial
benefit such as a promise of future
construction or design work on the
project, as well as indirect benefits the
consultant is aware of (e.g., if the project
would aid proposals sponsored by the
firm's other clients). For example,
completion of a highway project may
encourage construction of a shopping
center or industrial park from which the
consultant stands to benefit. If a
consulting firm is aware that it has such
an interest in the decision on the
proposal, it should be disqualified from
preparing the EIS, to preserve the
objectivity and integrity of the NEPA
process.
When a consulting firm has been
involved in developing initial data and
plans for the project, but does not have
any financial or other interest in the
outcome of the decision, it need not be
disqualified from preparing the EIS.
However, a disclosure statement in the
draft EIS should clearly state the scope
and extent of the firm's prior
involvement to expose any potential
conflicts of interest that may exist
17b. Q. If the firm in fact has no
promise of future work or other interest
in the outcome of the proposal, may the
firm later bid in competition with others
for future work on the project if the
proposed action is approved?
A. Yes.
18. Q. How should uncertainties about
indirect effects of a proposal be
addressed, for example, in cases of
disposal of federal lands, when the
identity or plans of future landowners is
unknown?
A. The EIS must identify all the
indirect effects that are known, and
bhIm a good faith effort to explain the
effects that are not known but are
"reasonably foreseeable." Section
1508.B(b). In the example, if there is total
uncertainty about the identity of future
land owners or the nature of future land
uses, then of course, the agency is not
required to engage in speculation or
'contemplation about their future plans.
But in the ordinary course of business,
people do make judgments based upon
reasonably foreseeable occurrences. It
will often be possible to consider the
likely purchasers and the development
trends in that area or similar areas in
recent years; or the likelihood that the
land will be used for an energy project,
shopping center, subdivision, farm or
factory. The agency has the
responsibility to make an informed
judgment, and to estimate future impacts
on that basis, especially if trends are
ascertainable or potential purchasers
have made themselves known. The
agency cannot ignore these uncertain,
but probable, effects of its decisions.
19a. Q. What is the scope of
mitigation measures that must be
discussed?
A. The mitigation measures discussed
in an EIS must cover the range of
impacts of the proposal. The measures
must include such things as design
alternatives that would decrease
pollution emissions, construction
impacts, esthetic intrusion, as well as
relocation assistance, possible land use
controls that could be enacted, and
other possible efforts. Mitigation
measures must be considered even for
impacts that by themselves would not
be considered "significant." Once tht
proposal itself is considered as a whole
to have significant effects, all of its
specific effects on the environment
(whether or not "significant") must be
considered, and mitigation measures
must be developed where it is feasible
to do so. Sections 1502.14(f), I502.l{j(ki
1508.14. ''
19b. Q. How should an EIS treat the
subject of available mitigation meaaures
that are (l) outside the jurisdiction Qf
lead or cooperating agencies, or (2)
unlikely to be adopted or enforced by
the responsible agency?
A. All relevant reasonable mitigaflon
measures that could improve the prQiect
are to be identified, even if they are
outside the jurisdiction of the lead
agency or the cooperating agencies, an(j
thus would not be committed as p*L e
the RODs of these agencies. Section.
1302.16(h). 1505.2(c). This will serve tQ
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alert agencies or officials who can
implement these extra measures, and
will encourage them to do so. Because
the EIS is the most comprehensive
environmental document, it is an ideal
vehicle in which to lay out not only the
full range of environmental impacts but
also the full spectrum of appropriate
mitigation.
However, to ensure that
environmental effects of a proposed
action are fairly assessed, the
probability of the mitigation measures
being implemented must also be
discussed. Thus the EIS and the Record
of Decision should indicate the
likelihood that such measures will be
adopted or enforced by the responsible
agencies. Sections 1502.16(h), 1505.2. If
there is a history oi nonenibrcement or
opposition to such measures, the EIS
and Record of Decision should
acknowledge such opposition or
donenforcement If the necessary
mitigation measures will not be ready
for a long period of time, this fact, of
course, should also be recognized.
20a. Q. When must a worst case
analysis be included in an EIS?
A. If there are gaps in relevant
information or scientific uncertainty
pertaining to an agency's evaluation of
significant adverse impacts on the
human environment, an agency must
make clear that such information is
lacking or that the uncertainty exists.
An agency must include a worst case
analysis of the potential impacts of the
proposal and an indication of the
probability or improbability of their
occurence if (a) the information relevant
to adverse impacts is essential to a
reasoned choice among alternatives and
the overall costs of obtaining the
information are exorbitant or (b) the
information relevant to adverse impacts
is important to the decision and the
means to obtain it are not known.
NEPA requires that impact
statements, at a minimum, contain
information to alert the public and
Congress to all known passible
environmental consequences of agency
action. Thus, one of the federal
government's most important
obligations is to present to the fullest
extent possible the spectrum of
consequences that may result from
agency decisions, and the details of their
potential consequences for the human
environment
20b. Q. What is the purpose of a
worst caae analysis? How is it
formulated and what is the scope of the
^analysis?
A. The purpose of the analysis is to
carry out NEPA's mandate for full
disclosure1 to the public of the potential
consequences of agency decisions, and
to cause agencies to consider those
potential consequences when acting on
the basis of scientific uncertainties or
gaps in available information. The
analysis is formulated on the basis of
available information, using reasonable
projections of the worst possible
consequences of a proposed action.
For example, if there are scientific
uncertainty and gaps in the available
information concerning the numbers of
juvenile fish that would be entrained In
a cooling water facility, the responsible
agency must disclose and consider the
possibility of the loss of the commercial
or sport fishery.
In addition to an analysts of a low
probability/catastrophic impact event,
the worst case analysis should alto
include a spectrum of events of higher
probability but less drastic impact
21. Q. Where an EIS or an EA la
combined with another project planning
document (sometimes called
"piggybacking"), to what degree may the
EIS or EA refer to and rely upon
information in the project document to
satisfy NEPA's requirements?
A. Section 1502.25 of the regulations
requires that draft EISs be prepared
concurrently and integrated with
environmental analyses and related
surveys and studies required by other
federal statutes. In addition. Section
1506.4 allows any environmental
document prepared in compliance with
NEPA to be combined with any other
agency document to reduce duplication
and paperwork. However, these
provisions were not intended to
authorize the preparation of a short
summary or outline EIS, attached to a .
detailed project report or land use plan
containing the required environmental
impact data. In such circumstances, the
reader would have to refer conatantly to
the detailed report to understand the
environmental impacts and alternatives
which should have been found in the EIS
itself.
The EIS must stand on its own as an
analytical document which fully informs
decisionmakers and the public of the
environmental effects of the proposal
and those of the reasonable alternatives.
Section 1502.1. But as long as the EIS is
clearly identified and is self-supporting,
it can be physically included in or
attached to the project report or land
use plan, and may use attached report
material as technical backup. .
Forest Service environmental impact
statements for forest management plans
are handled in this manner. The EIS
identifies the agency's preferred
alternative, which is developed in detail
as the proposed management plan. The
detailed proposed pi an accompanies the
EIS through the review process, and the
documents are appropriately cross-
referenced. The proposed plan is useful
for EIS readers as an example, to show
how one choice of management options
translates into effects on natural
resources. This procedure permits
initiation of the 90-day public review of
proposed forest plans, which is required
by the National Porest Management Act.
All the alternatives are discussed in
the EIS, which can be read as an
independent document The details of
the management plan are not repeated
in the EIS, and vice versa. This is a
reasonable functional separation of the
documents: the EIS contains information
relevant to the choice among
alternatives; the plan is a detailed
description of proposed management
activities suitable for use by the land
managers. This procedure provides for
concurrent compliance with the public
review requirements of both NEPA and
the National Forest Management Act.
Under some circumstances, a project
report or management plan may be
totally merged with the EIS. and the one
document labeled as both "EIS" and
"management plan" or "project report."
This may be reasonable where the
documents are short or where the EIS
format and the regulations for clear,
analytical EISs also satisfy the
requirements for a project report.
22. Q. May state and federal agencies
serve as joint lead agencies? If so, how
do they resolve law. policy and resource
conflicts under NEPA and the relevant
state environmental policy act? How do
they resolve differences in perspective
where, for example, national and local
needs may differ?
A. Under Section 1501.5(b), federal,
state or local agencies, as long as they
include at least one federal agency, may
act as joint lead agencies to prepare an
EIS. Section 1506.2 also strongly urges
state and local agencies and the
relevant federal agencies to cooperate
fully with each other. This should cover
joint research and studies, planning
activities, public hearings,
environmental assessments and the
preparation of joint EISs under NEPA
and the relevant "little NEPA" state
laws, so that one document will satisfy
both laws.
The regulations also recognize that
certain inconsistencies may exist
between the proposed federal action
and any approved state or local plan or
law. The joint document should discuss
the extent to which the federal agency
would reconcile its proposed action with
such plan or law. Section 1506.2(d). (See
Question 23).
Because there may be differences in
perspective as well as conflicts among
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federal, state and local goals for
resources management, the Council has
advised participating agencies to adopt
a flexible, cooperative approach. The
joint EIS should reflect all of their
interests and missions, clearly identified
as such. The final document would then
indicate how state and local interests
have been accommodated, or would
identify conflicts in goals (e.g.. how a
hydroelectric project, which might
induce second home development,
would require new land use controls).
The EIS must contain a complete
discussion of scope and purpose of the
proposal, alternatives, and impacts so
that the discussion is adequate to meet
the needs of local, state and federal
decisionmakers.
23a. Q. How should an agency handle
potential conflicts between a proposal
and the objectives of Federal, state or
local land use plans, policies and
controls for the area concerned? See
Sec. 1502.18(c).
A. The agency should first inquire of
other agencies whether there are any
potential conflicts. If there would be
immediate conflicts, or if conflicts could
arise in the future when the plans are
finished (see Question 23(b) below), the
EIS must acknowledge and describe the
extent of those conflicts. If there are any
possibilities of resolving the conflicts,
these should be explained as well. The
EIS should also evaluate the seriousness
of the impact of the proposal on the land
use plans and policies, and whether, or
how much, the proposal will impair the
effectiveness of land use control
mechanisms for the area. Comments
from officials of the affected area should
be solicited early and should be
carefully acknowleged and answered in
the EIS.
23b. Q. What constitutes a "land use
plan or policy" for purposes of this
discussion?
A. The term "land use plans." includes
all types of formally adopted documents
for land use planning, zoning and
related regulatory requirements. Local
general plans are included even though
they are subject to future change.
Proposed plans should also be
addressed if they have been formally
proposed by the appropriate government
body in a written form, and are being
actively pursued by officials of the
jurisdiction. Staged plans, which must
go through phases of development such
as the Water Resources Council's Level
A. B and C planning process should also
be included even though they are
incomplete.
The term "policies" includes formally
adopted statements of land use policy as
embodied in laws or regulations. It also
includes proposals for action such as the
initiation of a planning process, or a
formally adopted policy statement of the
local, regional or state executive branch,
even if it has not yet been formally
adopted by the local, regional or state
legislative body.
23c. Q. What options are available for
the decisionmaker when conflicts with
such plans or policies are identified?
A. After identifying any potential land
use conflicts, the decisionmaker must
weigh the significance of the conflicts,
among all the other environmental and
non-environmental factors that must be
considered in reaching a rational and
balanced decision. Unless precluded by
other law from causing or contributing
to any inconsistency with the land use
plans, policies or controls, the
decisionmaker retains the authority to
go forward with the proposal, despite
the potential conflict. In the Record of
Decision, the decisionmaker must
explain what the decision was. how it
was made, and what mitigation
measures are being imposed to lessen
adverse environmental impacts of the
proposal, among the other requirements
of Section 1505.2. This provision would
require the decisionmaker to explain
any decision to override land use plans,
policies or controls for the area.
24a. Q. When are EISs required on
policies, plans or programs?
A. An EIS must be prepared If an
agency proposes to implement a specific
policy, to adopt a plan for a group of
related actions, or to implement a
specific statutory program or executive
directive. Section 1506.18. In addition,
the adoption of official policy in the
form of rules, regulations and
interpretations pursuant to the
Administrative Procedure Act treaties,
conventions, or other formal documents
establishing governmental or agency
policy which will substantially alter
agency programs, could require an EIS.
Section 1508.18. In all cases, the policy,
plan, or program must have the potential
for significantly affecting the quality of
the human environment in order to
require an EIS. It should be noted that a
proposal "may exist in fact as well as by
agency declaration that one exists."
Section 1508.23.
24b. Q. When is an area-wide or
overview EIS appropriate?
A. The preparation of an area-wide or
overview EIS may be particularly useful
when similar actions, viewed with other
reasonably foreseeable or proposed
agency actions, share common timing or
geography. For example, when a variety
of energy projects may be located in a
single watershed, or when a series of
new energy technologies may be
developed through federal funding, the
overview or area-wide EIS would serve
18033
as a valuable and necessary analysis of
the affected environment and the
potential cumulative impacts of the
reasonably foreseeable actions under
thet program or within that geographical
area.
24c. Q. What is the function of tiering
in such cases?
A. Tiering is a procedure which
allows an agency to avoid duplication of
paperwork through the incorporation by
reference of the general discussions and
relevant specific discussions from an
environmental impact statement of
broader scope into one of lesser scope
or vice versa. In the example given in
Question 24b, this would mean that an
overview EIS would be prepared for all
of the energy activities reasonably
foreseeable in a particular geographic
area or resulting from a particular
development program. This impact
statement would be followed by site-
specific or project-specific EISs. The
tiering process would make each EIS of
greater use and meaning to the public aa
the plan or program develops, without
duplication of the analysis prepared for
the previous impact statement.
25a. Q. When is it appropriate to use
appendices instead of including
information in the body of an EIS?
A. The body of the EIS should be a
succinct statement of all the information
on environmental impacts and
alternatives that the decisionmaker and
the public need, in order to make the
decision and to ascertain that every
significant factor has been examined.
The EIS must explain or summarize
methodologies of research and
modeling, and the results of research
that may have been conducted to
analyze impacts and alternatives.
Lengthy technical discussions of
modeling methodology, baseline studies
or other work are best reserved for the *
appendix. In other words, if only
technically trained individuals are Ujcelv
to understand a particular discussion
then it should go in the appendix, a
plain language summary of the enalv-i.
and conclusions of that technical
discussion should go in the text of the
EIS. *
The final statement must also conta"
the agency's responses to comment* nm
the draft EIS. These responses will
primarily in the form of changes in
document itself, but specific answ^jZ®.
each significant comment should aU~H_
Included. These specific responses n?
be placed in an appendix If the y
comments are especially voluminous
summaries of the comments and
responses will suffice. (See Question •>«
regarding the level of detail require? r
responses to comments.) a ,or
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25b. Q. How does an appendix differ
from incorporation by reference?
A. First, if at all possible, the
appendix accompanies the E1S, whereas
the material which is incorporated by
reference does not accompany the EIS.
Thus the appendix should contain
information that reviewers will be likely
to want to examine. The appendix
should include materiaj that pertains to
preparation of a particular EIS. Research
papers directly relevant to the proposal,
lists of affected species, discussion of
the methodology of models used in the
analysis of impacts, extremely detailed
responses to comments, or other
information, would be placed in the
appendix.
The appendix must be complete and
available at the time the EIS is hied.
Five copies of the appendix must be sent
to EPA with five copies of the EIS for
filing. If the appendix Is too bulky to be
circulated, it instead must be placed in
conveniently accessible locations or
furnished directly to commentors upon
request. If it is not circulated with the
EIS, the Notice of Availability published
by EPA must so state, giving a telephone
number to enable potential commentors
to locate or request copies of the
appendix promptly.
Material that is not directly related to
preparation of the EIS should be
incorporated by reference. This would
include other EISs. research papers in
the general literature, technical
background papers or other material
that someone with technical training
could use to evaluate the analysis of the
proposal. These must be made available,
either by citing the literature, furnishing
copies to central locations, or sending
copies directly to commentors upon
request.
Care must be taken in all cases to
ensure that material incorporated by
reference, and the occasional appendix
that does not accompany the EIS, are in
fact available for the full minimum
public comment period.
28a. Q. How detailed must an EIS
index be?
A. The EIS index should have a level
of detail sufficient to focus on areas of
the EIS of rqjsonable interest to any
reader. It cannot be restricted to the
most important topics. On the other
hand, it need not identify every
conceivable term or phrase in the EIS. If
an agency believes that the reader is
reasonably likely to be interested in a
topic, it should be included.
28b. Q. Is a keyword index required?
A. No. A keyword index is a relatively
short list of descriptive terms that
identifies the key concepts or subject
areas in a document. For example it
could consist of 20 terms which describe
the most significant aspects of an EIS
that a future researcher would need:
type of proposal, type of impacts, type of
environment, geographical area,
sampling or modelling methodologies
used. This technique permits the
compilation of EIS data banks, by
facilitating quick and inexpensive
access to stored materials. While a
keyword index is not required by the
regulations, it could be a useful addition
for several reasons. First it can be
useful as a quick index for reviewers of
the EIS, helping to focus on anas of
interest. Second, if an agency keeps a
listing of the keyword indexes of the
EISs it produces, the EIS preparers
themselves will have quick access to
similar research data and methodologies
to aid their future EIS work. Third, a
keyword index will be needed to make
an EIS available to future researchers
using EIS data banks that are being
developed. Preparation of such an index
now when the document is produced
will save a later effort when the data
banks become operational.
27a. Q. If a consultant is used in
preparing an EIS, must the list of
preparers identify members of the
consulting first as well as the agency
NEPA staff who were primarily
responsible?
A. Section 1502.17 requires
identification of the names and
qualifications of persons who were
primarily responsible for preparing the
EIS or significant background papers,
including basic components of the
statement. This means that members of
a consulting firm preparing material that
is to become part of the EIS must be
identified. The EIS should identify these
individuals even though the consultant's
contribution may have been modified by
the agency.
27b. Q. Should agency staff involved
in reviewing and e&ting the EIS also be
included in the list of preparers?
A. Agency personnel who wrote basic
components of the EIS or significant
background papers must, of course, be
identified. The EIS should also list the
technical editors who reviewed or
edited the statements.
27c. Q. How much information should
be included on each person listed?
A. The list of preparers should
normally not exceed two pages.
Therefore, agencies must determine
which individuals had primary
responsibility and need not identify
individuals with minor involvement. The
list of preparers should include a very
brief identification of the individuals
involved, their qualifications (expertise,
professional disciplines) and the specific
portion of the EIS for which they are
responsible. This may be done in tabular
form to cut down on length. A line or
two for each person's qualifications
should be sufficient.
28. Q. May an agency file xerox copies
of an EIS with EPA pending the
completion of printing the document?
A. Xerox copies of *»n EIS may be filed
with EPA prior to printing only if the
xerox copies are simultaneously made
available to other agencies and the
public. Section 1506.9 of the regulations,
which governs EIS filing, specifically
requires Federal agencies to file EISs
with EPA no earlier than the EIS is
distributed to the public However, this
section does not prohibit xeroxing as a
form of reproduction and distribution.
When an agency chooses xeroxing as
the reproduction method, the EIS must
be clear and legible to permit ease of
reading and ultimate microfiching of the
EIS. Where eolor graphs are important
to the EIS, they should be reproduced
and circulated with the xeroxed copy.
29a Q. What response must an agency
provide to a comment on a draft EIS
which states that the EIS's methodology
is inadequate or inadequately
explained? For example, what level of
detail must an agency include in its
response to a simple postcard comment
making such an allegation?
A. Appropriate responses ta
comments are described in Section
1503.4. Normally the responses should
result in changes in the text of the EIS,
not simply a separate answer at the
back of the document. But. in addition,
the agency must state what its response
was. and if the agency decides that no
substantive response to a comment is
necessary, it must explain briefly why.
An agency is not under an obligation
to issue a lengthy reiteration of-its
methodology for any portion of an EIS if
the only comment addressing the
methodology is a simple complaint that
the EIS methodology is inadequate. But
agencies must respond to comments,
however brief, which are specific in
their criticism of agency methodology.
For example, if a commentor on an EIS
said that an agency's air quality
dispersion analysis or methodology was
inadequate, and the agency had
included a discussion of that analysis in
the EIS, little if anything need be added
in response to such a comment.
However, if the commentor said that the
dispersion analysis was inadequate
because of its use of a certain
computational technique, or that a
dispersion analysis was inadequately
explained because computational
techniques were not included or
referenced, then the agency would have
to respond in a substantive and
meaningful way to such a comment.
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If a number of comments are identical
or very similar, agencies may group the
comments and prepare a single answer
for each group. Comments may be
summarized if they are especially
voluminous. The comments or
summaries must be attached to the E1S
regardless of whether the agency
believes they merit individual
discussion in the body of the final E1S.
29b. Q. How must an agency respond
to a comment on a draft EIS that raises a
new alternative not previously
considered in the draft EIS?
A. This question might arise in several
possible situations. First, a commentor
on a draft EIS may indicate that there is
a possible alternative which, in the
agency's view, is not a reasonable
alternative. Section 1502.14(a). If that is
the case, the agency must explain why
the comment does not warrant further
agency response, citing authorities or
reasons that support the agency's
position and. if appropriate, indicate
those circumstances which would trigger
agency reappraisal or further response.
Section 1503.4(a). For example, a
commentor on a draft EIS on a coal fired
power plant may suggest the alternative
of using synthetic fuel. The agency may
reject the alternative with a brief
discussion (with authorities) of the
unavailability of synthetic fuel within
the time frame necessary to meet the
need and purpose of the proposed
facility.
A second possibility is that an agency
may receive a comment indicating that a
particular alternative, while reasonable,
should be modified somewhat, for
example, to achieve certain mitigation
benefits, or for other reasons. If the
modification is reasonable, the agency
should include a discussion of it in the
final EIS. For example, a commentor on
a draft EIS on a proposal for a pumped
storage power facility might suggest that
the applicant's proposed alternative
should be enhanced by the addition of
certain reasonable mitigation measures,
including the purchase and setaside of a
wildlife preserve to substitute for the
tract to be destroyed by the project. The
modified alternative including the
additional mitigation measures should
be discussed by the agency in the final
EIS.
A third slightly different possibility is
that a comment on a draft EIS will raise
an alternative which is a minor
variation of one of the alternatives
discussed in the draft EIS. but this
variation was not given any
consideration by the agency. In such a
case, the agency should develop and
evaluate the new alternative, if it is
reasonable, in the final EIS. If it is
qualitatively within the spectrum of
alternatives that were discussed in the
draft! a supplemental draft will not be
needed. For example, a commentor on a
draft EIS to designate a wilderness area
within a National Forest might
reasonably identify a specific tract of
the forest, and urge that it be considered
for designation. If the draft EIS
considered designation of a range of
alternative tracts which encompassed
forest area of similar quality and
quantity, no supplemental EIS would
have to be prepared. The agency could
fulfill its obligation by addressing that
specific alternative in the final EIS.
As another example, an EIS on an
urban housing project may analyze the
alternatives of constructing 2.000, 4.000.
or 6.000 units. A commentor on the draft
EIS might urge the consideration of
constructing 5.000 units utilizing a
different configuration of buildings. "This
alternative is within the spectrum of
alternatives already considered, and,
therefore, could be addressed in the
final EIS.
A fourth possibility is that a
commentor points out an alternative
which is not a variation of the proposal
or of any alternative discussed in the
draft impact statement, and is a
reasonable alternative that warrants
serious agency response. In such a case,
the agency must issue a supplement to
the draft EIS that discusses this new
alternative. For example, a commentor
on a draft EIS on a nuclear power plant
might suggest that a reasonable
alternative for meeting the projected
need for power would be through peak
load management and energy
conservation programs. If the permitting
agency has failed to consider that
approach in the Draft EIS, and the
approach cannot be dismissed by the
agency as unreasonable, a supplement
to the Draft EIS, which discusses that
alternative, must be prepared. (If
necessary, the same supplement should
also discuss substantial changes in the
proposed action or significant new
circumstances or information, as
required by Section 1502.9(c)(1) of the
Council's regulations.)
If the new alternative was not raised
by the commentor during scoping, but
could have been, commentors may find
that they are unpersuasive in their
efforts to have their suggested
alternative analyzed in detail by the
agency. However, if the new alternative
is discovered or developed later, and it
could not reasonably have been raised
during the scoping process, then the
agency must address it in a
supplemental draft EIS. The agency is,
in any case, ultimately responsible for
preparing an adequate EIS that
considers all alternatives.
30. Q. When a cooperating agency
with jurisdiction by law intends to adopt
a lead agency's EIS and it is not
satisfied with the adequscy of the
document, may the cooperating agency
adopt only the part of the EIS with
which it is satisfied? If so. would a
cooperating agency with jurisdiction by
law have to prepare a separate EIS or
EIS supplement covering the areas of
disagreement with the lead agency?
A. Generally, a cooperating agency
may adopt a lead agency's EIS without
recirculating it if it concludes that its
NEPA requirements and its comments
and suggestions have been satisfied.
Section 1508.3(a), (c). If necessary, a
cooperating agency may adopt only a
portion of the lead agency's EIS and
may reject that part of the EIS with
which it disagrees, stating publicly why
it did so. Section 1506.3(a).
A cooperating agency with
jurisidiction by law (e.g., an agency with
independent legal responsibilities with
respect to the proposal) has an
independent legal obligation to comply
with NEPA. Therefore, if the cooperating
agency determines that the EIS is wr0nj?
or inadequate, it must prepare a
supplement to the EIS, replacing or
adding any needed information, and
must circulate the supplement as a draft
for public and agency review and
comment. A final supplemental EIS
would be required before the agency
could take action. The adopted portiQns
of the lead agency EIS should be
circulated with the supplement. Section
1506.3(b). A cooperating agency with
jurisdiction by law will have to prepare
its own Record of Decision for its action
in which it must explain how it reached
its conclusions. Each agency should
explain how and why its conclusions
differ, if that is the case, from those of
other agencies which issued their
Records of Decision earlier.
An agency that did not cooperate jn
preparation of an EIS may also adopt a
EIS or portion thereof. But this woul^
arise only in rare instances, because an
agency adopting an EIS for use in ita
own decision normally would have been
a cooperating agency. If the propose^
action for which the EIS was prepared .
substantially the same as the propOBed
action of the adopting agency, the EiS
may be adopted as long as it is
recirculated as a final EIS and the
agency announces what it is doing, -j*. .
would be followed by the 30-day revjJ8
period and issuance of a Record of
Decision by the adopting agency, if ^
proposed action by the adopting agen!!
is not substantially the same as that i
1 m
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the EIS (i e.. if an E1S on one action is
being adapted for use in a decision on
another action), the EIS would be
treated as a draft and circulated for the
normal public comment period and other
procedures. Section 1506.3(b).
31a. Q. Do the Council's NEPA
regulations apply to independent
regulatory agencies like the Federal
Energy Regulatory CommiMion (FERC)
and the Nuclear Regulatory
Commission?
A. The statutory requirements of
NEPA's Section 102 apply to "all
agencies of the federal government."
The NEPA regulations implement the
procedural provisions of NEPA as set
forth in NEPA's Section 102(2) for all
agencies of the federal government. The
NEPA regulations apply to independent
regulatory agencies, however, they do
not direct independent regulatory
agencies or other agencies to make
decisions in any particular way or in a
way inconsistent with an agency's
statutory charter. Sections 1500.3,1500.6
1507.1, and 1507.3.
31b. Q. Can an Executive Branch
agency like the Department of the
Interior adopt an EIS prepared by an
independent regulatory agency such a*
FERC?
A. If an independent regulatory
agency iUch as FERC has prepared an
EIS in connection with its approval of a
proposed project an Executive Branch
agency (e.g., the Bureau of Land
Management in the Department of the
Interior) may, in accordance with
Section 1506.3. adopt the EIS or a
portion thereof for its uae in considering
the same proposal. In such a case the
EIS must, to the satisfaction of the
adopting agency, meet the standards for
an adequate statement under the NEPA
regulations (including scope and quality
of analysis of alternatives) and must
satisfy the adopting agency's comments
and suggestions. If the independent
regulatory agency fails to comply with
the NEPA regulations, the cooperating or
adopting agency may And that it is
unable to adopt the EIS, thus forcing the
preparation of a new EIS or EIS
Supplement for the same action. The
NEPA regulations were made applicable
to all federal agencies in order to avoid
this result, and to achieve uniform
application and efficiency of the NEPA
process.
32. Q. Under what circumstances do
old EISs have to be supplemented before
taking action on a proposal?
A. As a rule of thumb, if the proposal
has not yet been implemented, or if the
EIS concerns an ongoing program, EISs
that are more than 5 years old should be
carefully reexamined to determine if the
criteria in Section 1502.9 compel
preparation of an EIS supplement
If an agency has made a substantial
change in a proposed action that is
relevant to environmental concerns, or if
there are significant new circumstances
or information relevant to
- environmental concerns and bearing on
the proposed action or its impacts, a
supplemental EIS must be prepared for .
an old EIS so that th* agency has the
best possible information to make any
necessary substantive changes in its
decisions regarding the proposal.
Section 1502.9(c).
33a. Q. When must a referral of an
interagency disagreement be made to
the Council?
A. The Council's referral procedure is
a pre-decision referral process for
interagency disagreements. Hence,
Section 1504.3 requires that a referring
agency must deliver its referral to the
Council not later than 25 days after
publication by EPA of notice that the
final EIS is available (unless the lead
agency grants an extension of time
under Section 1504.3(b)).
33b. Q. May a referral be made after
this issuance of a Record of Decision?
A. No, except for cases where
agencies provide an internal appeal
procedure which permits simultaneous,
filing of the final EIS and the record of
decision (ROD). Section 1506.10(b)(2).
Otherwise, as stated above, the process
is a pre-decision referral process.
Referrals must be made within 25 days
after the notice of availability of the
final EIS, whereas the final decision
(ROD) may not be made or Sled until
after 30 days from the notice of
availability of the EIS. Sections
1504.3(b), 1506.10(b). If a lead agency
has granted an extension of time for
another agency to take action on a
referral, the ROD may not be issued
until the extension has expired.
34a. Q. Must Records of Decision
(RODs) be made public? How should
they be made available?
A. Under the regulations, agencies
must prepare a "concise public record of
decision," which contains the elements
specified in Section 1505.2. This public
record may be integrated into any other
decision record prepared by the agency,
or it may be separata if decision
documents are not normally made
public. The Record of Decision is
intended by the Council to be an
environmental document (even though it
is not explicitly mentioned in the
definition of "environmental document"
in Section 1506.10). Therefore, it must be
made available to the public through
appropriate public notice as required by
Section 1506.6(b). However, there is no
specific requirement for publication of
the ROD itself, either in the Federal
Register or elsewhere.
34b. Q. May the summary section in
the final Environmental Impact
Statement substitute for or constitute an
agency's Record of Decision?
A. No. An environmental impact
statement is supposed to inform the
decisionmaker before the decision is
made. Sections 1502.1.1505.2. The
Council's regulations provide for a 30-
day period after notice is published that
the final EIS has been filed with EPA
before the agency may take final action.
During that period, in addition to the
agency's own internal final review, the
public and other agencies can comment
on the final EIS prior to the agency's
final action on the proposal. In addition,
the Council's regulations make ciear that
the requirements for the summary in an
EIS are not the same as the
requirements for a ROD. Sections
1502.12 and 1505.2.
34c. Q. What provisions should
Records of Decision contain pertaining
to mitigation and monitoring?
A. Lead agencies "shall include
appropriate conditions [including
mitigation measures and monitoring and
enforcement programs) in grants,
permits or other approvals" and shall
"condition funding of actions on
mitigation." Section 1505.3. Any such
measures that are adopted must be
explained and committed in the ROD.
The reasonable alternative mitigation
measures and monitoring programs
should have been addressed in the draft
and final EIS. The discussion of
mitigation and monitoring in a Record of
Decision must be more detailed than a
general statement that mitigation is
being required, but not so detailed as to
duplicate discussion of mitigation in the
EIS. The Record of Decision should
contain a concise summary
identification of the mitigation measures
which the agency has committed itself
to adopt
The Record of Decision must also
state whether all practicable mitigation
measures have been adopted, and if not.
why not. Section 1505.2(c). The Record
of Decision must identify the mitigation
measures and monitoring and
enforcement programs that have been
selected and plainly indicate that they
are adopted as part of the agency's
decision. If the proposed action is the
issuance of a permit or other approval,
the specific details of the mitigation
measures shall then be included as
appropriate conditions in whatever
grants, permits, binding or other
approvals are being made by the federal
agency. Section 1505.3 (a), (b). If the
proposal is to be carried out by the
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federal agency itself, the Record of
Decision should delineate the mitigation
and monitoring measures in sufficient .
detail to constitute an enforceable
commitment, or incorporate by reference
the portions of the EIS that do so.
34d. Q What is the enforceability of a
Record of Decision?
A. Pursuant to generally recognized
principles of federal administrative law.
agencies will be held accountable for
preparing Records of Decision that
conform to the decisions actually made
and for carrying out the actions set forth
in the Records of Decision. This is based
on the principle that an agency must
comply with its own decisons and
regulations once they are adopted. Thus,
the terms of a Record of Decision are
enforceable by agencies and private
parties. A Record of Decision can be
used to compel compliance with or
execution of the mitigation measures
identified therein.
35. Q. How long should the NEPA
process take to complete?
A. When an EIS is required, the
process obviously will take longer than
when an EA is the only document
prepared. But the Council's NEPA
regulations encourage streamlined
review, adoption of deadlines,
elimination of duplicative work, eliciting
suggested alternatives and other
comments early through scoping,
cooperation among agencies, and
consultation with applicants during
project planning. The Council has
advised agencies that under the new
NEPA regulations even large complex
energy projects would require only
about 12 months for the completion of
the entire EIS process. For most major
actions, this period is well within the
planning time that is needed in any
event, apart from NEPA.
The time required for the preparation
of program EISs may be greater. The
Council also recognizes that some
projects will entail difficult long-term
planning and/or the acquisition of
certain data which of necessity will
require more time for the preparation of
the EIS. Indeed, some proposals should
be given more time for the thoughtful
preparation of an EIS and development
of a decision which fulfills NEPA's
substantive goals.
For cases in which only an
environmental assessment will be
prepared, the NEPA process should take
no more than 3 months, and in many
cases substantially less, as part of the
normal analysis and approval process
for the action. -
36a. Q. How long and detailed must
an environmental assessment (EA)be?
A. The environmental assessment is a
concise public document which has
three defined functions. (1} It briefly
provides sufficient evidence and
analysis for determining whether to
prepare an EIS; (2) it aids an agency's
compliance with NEPA when no EIS is
necessary, i.e., it helps to identify better
alternatives and mitigation measures;
and (3) it facilitates preparation of an
EIS when one is necessary. Section
, 1508.9(a).
Since the EA is a concise document, it
should not contain long descriptions or
detailed data which the agency may
have gathered. Rather, it should contain
a brief discussion of the need for the
proposal, alternatives to the proposal,
the environmental impacts of the
proposed action and alternatives, and a
list of agencies and persona consulted.
Section 1508.9(b).
While the regulations do not contain
page limits for EA's, the Council has
generally advised agencies to keep the
length of EAs to not more than
approximately 10-15 pages. Some
agencies expressly provide page
guidelines (e.g., 10-15 pages in the case
of the Army Corps). To avoid undue
length, the EA may incorporate by
reference background data to support its
concise discussion of the proposal and
relevant issues.
36b. Q. Under what circumstances is a
lengthy EA appropriate?
A. Agencies should avoid preparing
lengthy EAs except in unusual cases,
where a proposal is so complex that a
concise document cannot meet the goals
of Section 1508.9 and where it is
extremely difficult to determine whether
the proposal could have significant
environmental effects. In most cases,
however, a lengthy EA indicates that an
EIS is needed.
37a. Q. What is the level of detail of
Information that must be included in a
finding of no significant impact
(FONSIJ?
A. The PONSI ia a document la which
the agency briefly explains the reasons
why an action will not have a significant
effect on the hnman environment and.
therefore, why an EIS will not be
prepared. Section 1506.13. The finding
itself need not be detailed, but must
succinctly state the reasons for deciding
that the action will have no significant
environmental effects, and. if relevant
must show which factors wan weighted
most heavily in the determination. In
addition to this statement, the FONS1
must include, summarize, or attach and
incorporate by reference, the
environmental aaaeaament
37b. Q. What are the criteria for
deciding whether a FONSI should be
made available for public review for 30
days before the agency's final
determination whether to prepare an
EIS?
A. Public review is necessary, for
example, (a) if the proposal is a
borderline case, i.e., when there is a
reasonable argument for preparation of
an EIS; (b) if it is an unusual case, a new
kind of action, or a precedent setting
case such as a first intrusion of even a
minor development into s pristine area;
(c) when there is either scientific or
public controversy over the proposal; or
(d) when it involves a proposal which is
or is closely similar to one which
normally requires preparation of an EIS.
Sections 1501.4(e)(2), 1508.27. Agencies
also must allow a period of public
review of the FONSI if the proposed
action would be located in a floodplain
or wetland. E.0.11986, Sec. 2(a)(4); E.O.
11990, Set 2(b).
38. Q. Must (EAs) and FONSIs be
made public? If so, how should thia.be
done?
A. Yes, they must be available to the
public. Section 1506.6 requires agencies
to involve the public in implementing
their NEPA procedures, and this
includes public involvement in the
preparation of EAs and FONSIs. These
are public "environmental documents"
under Section 1506.6(b), and, therefore,
agencies must give public notice of their
availability. A combination of methoda
may be used to give notice, and the
methods should be tailored to the needa
of particular cases. Thus, a Federal
Register notice of availability of the
documents, coupled with notices in
national publications and mailed to
interested national groups might be
appropriate for proposals that are
national in scope. Local newgpaper
notices may be more appropriate for
regional or site-specific proposals.
The objective, however, ia to notify all
interested or affected parties. If thj8 ,s
not being achieved, then the methods
should be reevaluated and change
Repeated failure to reach the interested
or affected public would be interpreted
as a violation of the regulationa.
39. Q. Can an EA and FONSI be used
to impose enforceable mitigation
measures, monitoring programs, or 0ther
requirements, even though there ia no
requirement in the regulationa in Bucj,
cases for a formal Record of Decision?
A. Yea. In cases where an
environmental assessment is the
appropriate environmental doc*ta,«nt
there still may be mitigation
alternatives that would be deair»Ki. to
consider and adopt even though
impacts of the proposal will not K«
"significant" In such cases, the Ea
should include a discussion of these
m isures or alternatives to "asajs(
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agency planning and decisionmaking"
and to "aid an agency's compliance with
[NEPA| when no environmental impact
statement is necessary." Section
1501.3(b), 1508.9(a)(2). The appropriate
mitigation measures can be imposed as
enforceable permit conditions, or
adopted as part of the agency final
decision in the same manner mitigation
measures are adopted in the formal
Record of Decision that is required in
EIS cases.
40. Q. If an environmental assessment
indicates that the environmental effects
of a proposal are significant but that,
with mitigation, those effects may be
reduced to less than significant levels,
may the agency make a finding of no
significant impact rather than prepare
an EIS? Is that a legitimate function of
an EA and scoping?
A. Mitigation measures may be relied
upon^> make a finding of no significant
impact only if they are imposed by
statute or regulation, or submitted by an
applicant or agency as part of the
original proposal. As a general rule, the
regulations contemplate that agencies
should use a broad approach in defining
significance and should not rely on the
possibility of mitigation as an excuse to
avoid the EIS requirement. Sections
1508.8.1508.27.
If a proposal appears to have adverse
effects which would be significant, and
certain mitigation measures are then
developed during the scoping or EA
stages, the existence of such possible
mitigation does not obviate the need for
an EIS. Therefore, if scoping or the EA
identifies certain mitigation possibilities
without altering the nature of the overall
proposal itself, the agency should
continue the EIS process and submit the
proposal, and the potential mitigation,
for public and agency review and
comment. This is essential to ensure that
the final decision is based on all the
relevant factors and that the full NEPA
process will result in enforceable
mitigation measures through the Record
of Decision.
In some instances, where the proposal
itself so integrates mitigation from the
beginning that it is impossible to define
the proposal without including the
mitigation, the agency may then rely on
the mitigation measures in determining
that the overall effects would not be
significant (e.g., where an application for
a permit for a small hydro dam is based
on a binding commitment to build fish
ladders, to penult adequate down
stream flow, and to replace any lost
wetlands, wildlife habitat and
recreational potential). In those
instances, agencies ihould make the
FONS1 and EA available for 30 days of
public comment before taking action.
Section 1501.4(e)(2).
Similarly, scoping may result in a
redefinition of the entire project, as a
result of mitigation proposals. In that
case, the agency may alter its previous
decision to do an EIS. as long as the
agency or applicant resubmits the entire
proposal and the EA and FONSI are
available for 30 days of review and
comment. One example of this would be
where the size and location of a
proposed industrial park are changed to
avoid affecting a nearby wetland area.
|FR Doc. H-VM FUad *U ut|
MUJNQ COM
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 531
(Docket No. LVM 77-08; Node* S]
Pasaangar Automobile Average Fuai
Economy Standards; Exemption From
Average Fual Economy Standards
AOCNCV. National Highway Traffic
Safety Administration, Department of
Transportation.
action; Final decision to grant
exemption from fuel economy
standards.
summary: This notice exempts
Excalibur Automobile Corporation
(Excalibur) from the generally
applicable average fuel economy
standards of 19.0 miles per gallon (mpg)
and 20.0 mpg for 1979 and 1980 model
year passenger automobiles,
respectively, and establishes alternative
standards. The alternative standards are
11.5 mpg in the 1979 model year and 16.2
mpg in the 1980 model year.
DATES: The exemptiona and alternative
standards set forth in this notice apply
in the 1979 and 1980 model years.
PON nWTHCII INFORMATION CONTACT:
Robert Mercure, Office of Automotive
Fuel Economy Standards, National
Highway Traffic Safety Administration,
400 Seventh Street SW„ Washington,
D.C. 20590 (202-755-9364).
SUmiMINTAIIY INFORMATION: The
National Highway Traffic Safety
Administration (NHTSA) is exempting
Excalibur from the generally applicable
average fuel economy standards for the
1979 and 1980 model year and
establishing alternative standards
applicable to that company In those
model years. This exemption is issued
under the authority of section 502(c) of
the Motor Vehicle Information and Cost
Savings Act as amended (the Act) (15
U.S.C. 2002(c)). Section 502(c) provides
that a manufacturer of passenger
automobiles that manufactures fewer
than 10.000 passenger automobiles
annually may be exempted from the
generally applicable average fuel
economy standard for a particular
model year if that standard is greater
than the low volume manufacturer's
maximum feasible average fuel economy
and if the NHTSA establishes an
alternative standard applicable to that
manufacturer at the low volume
manufacturer's maximum feasible
average fuel economy. Section 502(e) of
. the Act (15 U.S.C. 2002(e)) requires the
NHTSA to consider.
(1) Technological feasibility;
(2) Economic practicability;
(3) The effect of other Federal motor
vehicle standards on fuel economy, and
(4) The need of the Nation to conserve
energy.
This final rule was preceded by a
notice announcing the NHTSA's
proposed decision to grant an exemption
to Excalibur for the 1979 and 1980 model
years (45 FR 5084a July 31.1980). No
comments were received during the 45-
day comment period.
Based on its conclusions that it is not
technologically feasible and
economically practicable for Excalibur
to improve the fuel economy of its 1979
and 1980 model year automobiles above
an average of 11.5 and 18.2 mpg.
respectively, that other Federal
automobile standards did not affect
achievable fuel economy beyond the
extent considered in this analysis, and
that the national effort to conserve
energy will be negligibly affected by the
granting of the requested exemptions,
this agency concludes that the maximum
feasible average fuel economy for
Excalibur in the 1979 and 1980 model
years is 11.5 mpg and 16.2 mpg.
respectively. Therefore, NHTSA is
exempting Excalibur from the generally
applicable standards and is establishing
alternative standards of 11.5 mpg for the
1979 model year and 16.2 mpg for the
1980 model year.
In consideration of the foregoing. 49
CFR Part 531 is* amended by revising
S 531.5(b)(5) to read as follows:
S 531.5 Pual economy standards.
« « • ft •
(b) The following manufacturers shall
comply with the fuel economy standards
indicated below for the specified model
years:
« • • • •
(5) Excalibur Automobile Corporation.
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AREAS OF EPA RESPONSIBILITY BY LAWOR SPECIAL EXPERTISE
I. Pollution Control
A. Air Pollution
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD
Permits). 42 U.S.C. 7470 et seq. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national
primary and secondary ambient air quality standards. 42 U.S.C.
7410. (40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new
stationary emissions sources. 42 U.S.C. 7411 (40 CFR Part 60)
* Certification of new emission sources for conformance with
National Emission Standards for Hazardous Air Pollutants
(NESHAPs). 42 U.S.C. 7412. (40 CFR Part 61)
* Applications for primary non-ferrous smelter orders. 42 U.S.C.
7419. (40 CFR Part 57)
* Assuring that grants for construction of sewage treatment works
conform with State Implementation Plans. 42 U.S.C. 7616.
(40 CFR Part 20)
2. Special Expertise
0 Clean Air Act, as amended. 42 U.S.C. 7401 et seq.
° Effects of air pollution on public health, welfare and the
environment
0 Air pollution control and abatement technologies
° Ambient air quality standards (40 CFR Part 51)
° Criteria and Standards for PSD Permits (40 CFR Parts 51, 52 and 124)
° Protection of visibility (40 CFR Part 51)
0 Ambient air quality monitoring technologies and methods
(40 CFR Part 53)
0 Stationary source emission standards (40 CFR Part 60)
° National emission standards for hazardous air pollutants
(40 CFR Part 61)
0 Mobile source emission standards (40 CFR Parts 85-87)
B. Water Pollution
1. Water Quality
a. Jurisdiction by Law
* National Pollutant Discharge Elimination System (NPDES) permits
for discharge of pollutants into the waters of the United States
33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C.
1345. (40 CFR 122-124)
* NPDES permits for discharge of specific pollutants from
aquaculture projects. 33 U.S.C. 1328. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
Into the waters of the United States. 33 U.S.C. 1344.
(40 CFR Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and
disposal facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Contol (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* Assistance for construction of publicly owned wastewater
treatment works. 33 U.S.C. 1281. (40 CFR Parts 30, and 35)
* Denial of Federal assistance for any project that the
DRAFT
-86-
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Administrator determines may contaminate a designated sole
source aquifer. 42 U.S.C. 300h-3(e). (40 CFR Part 149)
b. Special Expertise
° Federal Water Pollution Control Act, as amended. 33 U.S.C.
1251 et seq.
° Effects of water pollution on public health welfare, and the
environment
° Water pollution control and abatement technologies
0 NPDES permit technical regulations (40 CFR Parts 125, 129,
133, and 136)
0 Effluent guidelines (40 CFR Parts 400-460)
0 RCRA permit technical regulations (40 CFR Part 146)
0 UIC permit technical regulations (40 CFR Part 146)
° 404 permit guidelines (40 CFR Part 230)
° Water Quality Standards (40 CFR Part 120)
° Drinking Water Standards (40 CFR Parts 141-143)
° Criteria for State, local, and regional oil removal
contingency plans (40 CFR Part 109)
° Regulations concerning the discharge of oil (40 CFR Part 110)
° Oil Pollution Prevention (Spill Prevention Control and
Countermeasure Plans) (40 CFR Part 112)
2. Pollution of Marine Resources
a. Jurisdiction by Law
* National Pollutant Discharge Elimination System (NPDES)
permit for discharge of pollutants into the waters of the
United States. 33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C.
1345. (40 CFR 122-124)
* NPDES permits for discharge of specific pollutants from
aquacuiture projects. 33 U.S.C. 1328. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR
Parts 220-224)
* Permits for transportation of materials (other than dredged
material) for the purposes of dumping into ocean waters.
42 U.S.C. 1412, 1414. (40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for
purposes of dumping into ocean waters. 33 U.S.C. 1413.
(40 CFR Part 225)
b. Special Expertise
0 Marine Protection, Research and Sanctuaries Act, as amended.
33 U.S.C. 1401 et seq.
0 Effects of pollution on public health, welfare and the marine
environment
° Criteria for ocean dumping permits (40 CFR Part 227)
0 Criteria for State, local, and regional oil removal contingency
plans (40 CFR Part 109)
0 Regulations concerning the discharge of oil (40 CFR Part 110)
0 Oil Pollution Prevention (Spill Prevention Control and Counter-
measure Plans) (40 CFR Part 112)
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Solid Waste
1. Jurisdiction by Law
* NPDES permits for the disposal of sewage sludge. 33 U.S.C.
1345. (40 CFR 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and
disposal facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418.
(40 CFR Parts 220-224)
* Permits for transportation of materials (other than dredged
material) for the purposes of dumping into ocean waters. 42 U.S.C.
1412, 1414. (40 CFR Parts 220-224)
* Assistance for construction of solid waste disposal facilities.
42 U.S.C. 6948. (40 CFR Parts 30, and 35)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer.
42 U.S.C. 300h-3/fe). (40 CFR Part 149)
2. Special Expertise
0 The Solid Waste Disposal Act, as amended by the Resource
Conservation and'Recovery Act. 42 U.S.C. 6901 et sea.
0 Effects of solid waste on public health, welfare and the
environment
0 Solid waste disposal technology
0 Resource conservation and recovery
0 Guidelines for Thermal Processing of Solid Wastes (40 CFR Part 240)
0 Guidelines for Land Disposal of Solid Waste (40 CFR Part 241)
0 Guidelines for the Collection and Storage of Residential,
Commercial, and Institutional Solid Waste (40 CFR Part 243)
° Solid Waste Management Guidelines for Beverage Containers
(40 CFR Part 244)
0 Guidelines for Resource Recovery Facilities (40 CFR Part 245)
0 Guidelines for Source Separation for Materials Recovery
(40 CFR Part 246)
Noi se
1. Jurisdiction by Law
- none
2. Special Expertise
0 Noise Control Act, as amended 42 U.S.C 4901 et seq.
0 Effects of noise on the public health, welfare and the
environment
° Noise abatement and control technologies
0 Noise impact assessment technologies
0 Noise emission standards (40 CFR Parts 201-205)
Radiation
1. Jurisdiction by Law
- none
2. Special Expertise
0 Standards for the Uranium Fuel Cycle (40 CFR Part 190)
0 Standards for Uranium Mill Tailings (40 CFR Part 192)
0 Radiation standards for Ocean Disposal (40 CFR Part 227)
0 Radiation standards for Drinking Water (40 CFR Part 141)
° Guidance to other Federal agencies for radiation
standards. 42 U.S.C. 2021(n).
-88-
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F. Hazardous Substances
1. Toxic Materials
a. Jurisdiction by Law
* Certification of new emission sources for conformance
with National Emission Standards for Hazardous Air
Pollutants (NESHAPs). 42 U.S.C. 7412. (40 CFR Part 61)
* RCRA permits for hazardous waste treatment, storage, and
disposal facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Orders prohibiting manufacture of toxic chemicals. 15 U.S.C.
2605. (40 CFR Part 750)
b. Special Expertise
0 Resource Conservation and Recovery Act, as amended. 42 U.S.C.
6901 et seq.
0 Toxic~^Tubstances Control Act, as amended. 15 U.S.C. 2601 et seq.
0 Effects of pollution by toxic materials on public health,
welfare and the environment
0 Identification and listing of Hazardous Waste (40 CFR Part 261)
0 Standards Applicable to Generators of Hazardous Waste
(40 CFR Part 262)
0 Standards Applicable to Transporters of Hazardous Waste
(40 CFR Part 263)
° Standards for Owners and Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities (40 CFR Parts 264-265)
0 Inventory Reporting Regulations for Toxic Substances
(40 CFR Part 710)
0 Standards for the storage and Disposal of Toxic Waste Material
(40 CFR Part 775)
2. Food Additives and Contamination of Foodstuffs
a. Jurisdiction by Law
- none
b. Special Expertise
0 Federal Food, Drug, and Cosmetic Act, as amended. 21 U.S.C.
346a.
0 Tolerances and Exemptions from Tolerances for Pesticides
in or on Raw Agricultural Commodities (40 CFR Part 180)
3. Pesticides
a. Jurisdiction by Law
* RCRA permits for hazardous waste treatment, storage, and
disposal facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Registration of pesticides. 7 U.S.C. 136a. (40 CFR Part 162)
* Certification of pesticide users. 7 U.S.C. 136b.
(40 CFR Part 171)
* Permits for the experimental use of pesticides. 7 U.S.C. 136c.
(40 CFR Part 172)
* Emergency exemptions for pesticide use granted to Federal
or State agencies. 7 U.S.C. 136p. (40 CFR Part 166)
* Orders prohibiting manufacture of toxic chemicals. 15 U.S.C.
2605. (40 CFR Part 750)
b. Special Expertise
° Federal Insecticide, Fungicide and Rodenticide Act, as
amended. 7 U.S.C. 136 et seq.
0 Federal Food, Drug and "Cosmetic Act, as amended. 21 U.S.C.
346a.
° Effects of Pesticides on Public Health, Welfare, and the
envi ronment
-89-
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0 Tolerances and Exemptions from Tolerances for Pesticide
Chemicals in or on Raw Agricultural Commodities (40 CFR Part 180)
0 Procedures for the Disposal and Storage of Pesticides and
Pesticide Containers (40 CFR Part 165)
0 Worker Protection Standards for Agricultural Pesticides
(40 CFR Part 170)
0 Control of non point source pollution
. Energy
A. Electric Power Development, Generation and Transmission, and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et se£. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new stationer
emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certificaton of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAP). 42 U.s q
7412. (40 CFR Part 61)
* National Pollutant Discharge Elimination System (NPDES) permits f0r
discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343.
(40 CFR Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR pAri.
220-224) arts
* Permits for transportation of materials (other than dredged material^
for the purposes of dumping into ocean waters. 42 U.S.C. 1412, idi/i
(40 CFR Parts 220-224) A*'
* Review of permits for transportation of dredged material for puro0^oc
of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR Part 225)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer.
42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
pollution control (see Part I)
effects of pollution from electric power development, generation
transmission and use on the environment '
B. Petroleum Development, Extraction, Refining, Transport, and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits}
42 U.S.C. 7470 et se^. (40 CFR Parts 51, 52, and 124) }'
Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(4.0 CFR Parts 51 and 52)
-90-
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* Approval of State plans for standards of performance for new
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certificaton of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAP). 42 U.S.C.
7412. (40 CFR Part 61)
* National Pollutant Discharge Elimination System (NPDES) permits for
discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials into
the waters of the United States. 33 U.S.C. 1344 (40 CFR Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343.
(40 CFR Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418.
(40 CFR Parts 220-224)
* Permits for transportation of materials (other than dredged
material) for the purposes of dumping into ocean waters. 42
U.S.C. 1412, 1414. (40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for
purposes of dumping into ocean waters. 33 U.S.C. 1413.
(40 CFR Part 225)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer.
42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
° pollution control (see Part I)
0 effects of pollution from petroleum development, extraction,
refining, transport and use on the environment
C. Natural Gas Development, Production, Transmission, and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et se^. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs). 42 U.S.C.
7412. (40 CFR Part 61)
* National Pollutant Discharge Elimination System (NPDES) permits
for discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
-91-
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* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR
Parts 220-224)
* Permits for transportation of materials (other than dredged
material) for the purposes of dumping into ocean waters. 42 U.S.C.
1412, 1414. (40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for
purposes of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR
Part 225)
* Denial of Federal assistance for any project that, the
Administrator determines may contaminate a designated sole
source aquifer. 42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
° pollution control (see Part I)
° effects of pollution from natural gas development, production,
transmission and use on the environment
D. Coal and Minerals Development, Mining Conversion, Processing, Transport and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et se£. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new stationary
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs).
42 U.S.C. 7412. (40 CFR Part 51)
* National Pollutant Discharge Elimination System (NPDES) permits
for discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR Parts
220-224)
* Permits for transportation of materials (other than dredged material)
for the purposes of dumping into ocean waters. 42 U.S.C. 1412, 1414
(40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for purposes
of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR Part 225)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer. 42 U.s c
300h-3(e). (40 CFR Part 149)
2. Special Expertise
0 pollution control (see Part I)
0 effects of pollution from coal and minerals development, mining
conversion processing, transport and use on the environment
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Ill. Land Use
A. Land Use Changes, Planning and Regulation of Land Development
1. Jurisdiction by Law
* Review of permits for the discharge of dredged or fill
materials into the waters of the United States. 33 U.S.C.
1344. (40 CFR Parts 122-124)
* Assistance for construction of publicly owned wastewater
treatment works. 33 U.S.C. 1281. (40 CFR Parts 30, and 35)
* Assistance for construction of solid waste disposal facilities
42 U.S.C. 6948. (40 CFR Parts 30, and 35)
* Assistance for areawide water quality management planning. 33 U.S.C.
1288. (40 CFR Parts 30, and 35)
* Assistance to localities to help restore publicly owned lakes.
33 U.S.C. 1324. (40 CFR Parts 30, and 35)
* Denial of Federal assistance for any project that the
Administrator determines may contaminate a designated sole
source aquifer. 42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
° pollution control (see Part I)
° effects of pollution from land use changes on the environment
° secondary effects of land use changes
B. Public Land Management (including Federal facilities)
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD.Permits).
42 U.S.C. 7470 et seq. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs). 42 U.S.C.
7412. (40 CFR Part 61)
* Assuring that grants for construction of sewage treatment works conforn
with State Implementation Plans. 42 U.S.C. 7616. (40 CFR Part 20)
* National Pollutant Discharge Elimination System (NPDES) permits for
discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C. 1345.
(40 CFR 122-124)
* NPDES permits for discharge of specific pollutants from aquaculture
projects. 33 U.S.C. 1328. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42. U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Emergency exemptions for pesticide use granted to Federal or State
agencies. 7 U.S.C. 136p. (40 CFR^art-T66)
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* Assistance for areawide water quality management planning. 33 U.S.C.
1288. (40 CFR Parts 30, and 35) publicly owned lakes.
* Assistance to localities to help restore puon*. y
33 U.S.C. 1324. (40 CFR Parts 3 , ' ^ect that the Administrator
* Denial of Federal assistance fo J P sole SOUrce aquifer,
determines may contaminate a1de:s g
42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
0 pollution control (see Part ij ,
° effects of pollution on pollution contral laws
0 Federal Facilities complianc inciucjing integrated pest management
- pesticide use on Federal lands, including
C. Land Use in Coastal Areas
1. Jurisdiction by Law . . auality deterioration (PSD Permits).
* Prevention of charts 51> 52, and 124)
42 U.S.C. 7470 et se^. ^ t tion pians (SIPs) for national primary
* Approval of Statey standards. 42 U.S.C. 7410.
and secondary ambient an quality
(40 CFR Parts 51 ana ^ standards of performance for new
* Approval of State P1?" £°rs.St42 u.S.C. 7411. (40 CfR Part 60)
stationary emission sou sources for conformance with National
* ^nilln'sta^daJd^orirz^Sous Air Pollutants (NESHAPs). 42 U.S.C.
7412. C^R„^"L6Ur construction of sewage treatment works conform
* Assuring that grants for »n« ^ ?616_ (4Q cfR part 2())
with State I™P]®""'M,charge Elimination System (NPDES) permits for
* of the un1ted States-
* NP0ESSpe™m2for the disposal of sewage sludge. 33 U.S.C. 1345.
(40 CFR 122-124) discharge of dredged or fill materials
* S^he waXri of t^e Sniped States. 33 U.S.C. 1344. (40 CFR
S!S»!S hazardous waste treatment, storage, and disposal
«RA Permits for hazardous w ^
. Srg'riuni Control'(UK) permits. 42 U.S.C. 300h.
* Ass1stance'for*constructlon of publicly owned wastewater treatment
Assistance o ?arts 3Q 35j
. NPDES*permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
* Pe™its2foi2ocean dumping. 33 U.S.C. 1412. 1414, 1418. (40 CFR
* Permits^for^transportation of materials (other than dredged material)~
for the purposes of dumping into ocean waters. 42 U.S.C. 1412,
1414 (40 CFR Parts 220-224)
* Review of permits for transportation of dredged JJterlaI for purooses
nf dtimpinq into ocean waters. 33 U.S.C. 1413. iw t.ru rarti ccz)
* Assistance for construction of solid waste disposal facilities
a? II S C. 6948. (40 CFR Parts 30, and 35) . .
* Denial'of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer.
42 U.S.C. 300h-3(e). (40 CFR Part 149)
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2. Special Expertise
0 pollution control (see Part I)
° effects of pollution on the coastal environment
Protection of Environmentally Critical Areas (Floodplains, Wetlands,
Barrier Islands, Beaches and Dunes, Unstable Soils, Steep Slopes,
Aquifer Recharge Areas, Tundra, et cetera)
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et seg,. (40 CFR Parts 51, 52, and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs). 42 U.S.C.
7412. (40 CFR Part 61)
* Assuring that grants for construction of sewage treatment works conform
with State Implementation Plans. 42 U.S.C. 7616. (40 CFR Part 20)
* National Pollutant Discharge Elimination System (NPDES) permits for
discharge of pollutants into-the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C. 1345.
(40 CFR 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* Assistance for construction of publicly owned wastewater treatment
works. 33 U.S.C. 1281. (40 CFR Parts 30, and 35)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR Parts
220-224)
* Permits for transportation of materials (other than dredged material)
for the purposes of dumping into ocean waters. 42 U.S.C. 1412, 1414.
(40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for purposes
of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR Parts 225)
* Assistance for construction of solid waste disposal facilities
42 U.S.C. 6948. (40 CFR Parts 30, 35)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer. 42 U.S.C.
300h-3(e). (40 CFR Part 149)
2. Special Expertise
° pollution control (see Part I)
0 effects of pollution on wetlands, floodplains, prime
agricultural lands, et cetera
Community Development
1. Jurisdiction by Law
* Assistance for construction of publicly owned wastewater
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treatment works. 33 U.S.C. 1281. (40 CFR Parts 30, and 35)
* Assistance for areawide water quality management planning.
33 U.S.C. 1288. (40 CFR Parts 30 and 35)
2. Special Expertise
0 pollution control (see Part I)
0 effects of community development, including secondary impacts
on the environment
F. Historic, Architectural and Archeological Preservation
1. Jurisdiction by Law
- none
2. Special Expertise
° Effects of pollution on historic, architectural and
archeological resources
G. Outdoor Recreation
1. Jurisdiction by Law
* Review of permits for the discharge of dredged or fill
materials into the waters of the United States. 33 U.S.C.
1344. (40 CFR Parts 122-124)
* Assistance for construction of publicly owned wastewater
treatment works. 33 U.S.C. 1281. (40 CFR Parts 30, and 35)
* Assistance for areawide water quality management planning.
33 U.S.C. 1324. (40 CFR Parts 30, and 35)
* Assistance to localities to help restore publicly owned lakes.
33 U.S.C. 1324. (40 CFR Parts 30, and 35)
2. Special Expertise
0 pollution control (see Part I)
0 effects of pollution on outdoor recreation areas and
opportunities
0 recreational benefits of clean water
Natural Resource Management
A. Weather Modification
1. Jurisdiction by Law
- none
2. Special Expertise
° pollution control (see Part I)
0 effects of weather modification on the environment
B. Waterway Regulation and Stream Modification
1. Jurisdiction by Law
* National Pollutant Discharge Elimination System (NPDES)
permits for discharge of pollutants into the waters of the
United States. 33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C.
1345. (40 CFR 122-124)
* NPDES permits for discharge of specific pollutants from
aquaculture projects. 33 U.S.C. 1328. (40 CFR Parts 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
2. Special Expertise
° pollution control (see Part I)
0 effects of waterway regulation and stream modification on the
environment
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C. Soil and Plant Conservation, and Hydrology
1. Jurisdiction by Law
* Denial of Federal assistance for any project that the
Administrator determines may contaminate a designated sole
source aquifer. 42 U.S.C. 300h03(e). (40 CFR Part 149)
2. Special Expertise
0 pollution control (see Part I)
0 non-point source water pollution control
° surface and groundwater systems modelling
0 effects of pollution on soil and plant conservation, and hydrology
D. Fish and Wildlife
1. Jurisdiction by Law
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
2. Special Expertise
0 pollution control (see Part I)
0 effects of pollution on Fish and Wildlife
0 404 permit guidelines (40 CFR Part 230)
E. Renewable Resource Development, Production, Management, Harvest,
Transport and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et sea.. (40 CFR Parts 51» 52» and 124)
* Approval of State Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new stationary
emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs). 42 U.S.C.
7412. (40 CFR Part 61)
* National Pollutant Discharge Elimination System (NPDES) permits for
discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C. 1345.
(40 CFR 122-124)
* Review of permits for the discharge of dredged or fill materials
into the waters of the United States. 33 U.S.C. 1344. (40 CFR
Parts 122-124)
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR Parts
220-224)
* Permits for transportation of materials (other than dredged material)
for the purposes of dumping into ocean waters. 42 U.S.C. 1412, 1414.
(40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for purposes
of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR Parts 225)
* Assistance for construction of solid waste disposal facilities
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42 U.S.C. 6948. (40 CFR Parts 30, and 35)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer.
42 U.S.C. 300h-3(e). (40 CFR Part 149)
2. Special Expertise
0 pollution control (see Part I)
0 effects of renewable resource development, production, management
and use on the environment
F. Nqn Energy Mineral Resource Conservation, Development, Production,
Management, Transport and Use
1. Jurisdiction by Law
* Prevention of significant air quality deterioration (PSD Permits).
42 U.S.C. 7470 et seg,. (40 CFR Parts 51, 52, and 124)
* Approval of Stale Implementation Plans (SIPs) for national primary
and secondary ambient air quality standards. 42 U.S.C. 7410.
(40 CFR Parts 51 and 52)
* Approval of State plans for standards of performance for new
stationary emission sources. 42 U.S.C. 7411. (40 CFR Part 60)
* Certification of new emission sources for conformance with National
Emission Standards for Hazardous Air Pollutants (NESHAPs). 42 U.S.C.
7412. (40 CFR Part 61)
* National Pollutant Discharge Elimination System (NPDES) permits for
discharge of pollutants into the waters of the United States.
33 U.S.C. 1342. (40 CFR Parts 122-124)
* NPDES permits for the disposal of sewage sludge. 33 U.S.C. 1345.
(40 CFR 122-124)
* Review of permits for the discharge of dredged or fill materials into
the waters of the United States. 33 U.S.C. 1344. (40 CFR Parts 122-124
* RCRA permits for hazardous waste treatment, storage, and disposal
facilities. 42 U.S.C. 6925. (40 CFR Parts 122-124)
* Underground Injection Control (UIC) permits. 42 U.S.C. 300h.
(40 CFR Parts 122-124)
* NPDES permits for ocean discharges. 33 U.S.C. 1343. (40 CFR
Parts 122-124)
* Permits for ocean dumping. 33 U.S.C. 1412, 1414, 1418. (40 CFR Parts
220-224)
* Permits for transportation of materials (other than dredged material)
for the purposes of dumping into ocean waters. 42 U.S.C. 1412, 1414.
(40 CFR Parts 220-224)
* Review of permits for transportation of dredged material for purposes
of dumping into ocean waters. 33 U.S.C. 1413. (40 CFR Parts 225)
* Assistance for construction of solid waste disposal facilities
42 U.S.C. 6948 (40 CFR Parts 30, and 35)
* Denial of Federal assistance for any project that the Administrator
determines may contaminate a designated sole source aquifer. 42 U.S.C.
300h-3(e). (40 CFR Part 149)
2. Special Expertise
0 pollution control (see Part I)
0 effects of non-energy mineral resource conservation, development,
production, management, transport, and use on the environment
G. Natural Resource Conservation
1. Jurisdiction by Law
- none
2. Special Expertise
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pollution control (see Part I)
effects of resource conservation on the environment
resource recovery from wastes
solid waste management guidelines for beverage containers
(40 CFR Part 244)
Resource recovery facilities guidelines (40 CFR Part 245)
Guidelines for source separation materials recovery (40 CFR Part 246)
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CEQ
SCOPING GUIDANCE
I. Introduction
A. Background of this document.
In 1978, with the publication of the proposed NEPA regulations (since
adopted as formal rules, 40 C.F.R. Parts 1500-1508), the Council on Envi-
ronmental Quality gave formal recognition to an increasingly '.'«?ed term —
scoping. Scoping is an idea that has long been familiar to those involved
in NEPA compliance: In order to manage effectively the preparation of an
environmental impact statement (EIS), one must determine the scope of the
docunent — that is, what will be covered, and in what detail. Planning of
this kind was a normal component of EIS preparation. But the consideration
of issues and choice of alternatives to be examined was in too many cases
completed outside of public view. The innovative approach to scoping in
the regulations is that the process is open to the public and state and
local governments, as well as to affected federal agencies. This open pro-
cess gives rise to important new opportunities for better and more effici-
ent NEPA analyses/ and simultaneously places new responsibilities on public
and agency participants alike to surface their concerns early. Scoping
helps insure that real problems are identified early and properly studied;
that issues that are of no concern do not consume time and effort; that the
draft statement when first made public is balanced and thorough; and that
the delays occasioned by re-doing an inadequate draft are avoided. Scoping
does not create problems that did not already exist; it ensures that pro-
blems that would have been raised anyway are identified early in the
process.
Many members of the public as well as agency staffs engaged in the NEPA
process have told the Council that the open scoping requirement is one of
the most far-reaching changes engendered by the NEPA regulations. They
have predicted that scoping could have a profound positive effect on envi-
ronmental analyses, on the impact statement process itself, and ultimately
on decisionmaking.
Because the concept of open scoping was new, the Council decided to encour-
age agencies' innovation without unduly restrictive guidance. Thus the
regulations relating to scoping are very simple. They state that "there
shall be an early and open process for determining the scope of issues to
be addressed" which "shall be termed scoping," but they lay down few spe-
cific requirements. (Section 1501.7*). They require an open process with
public notice; identification of significant and insignificant issues;
allocation of EIS preparation assignments; identification of related analy-
sis requirements in order to avoid duplication of work; and the planning of
a schedule for EIS preparation that meshes with the agency's decisionmaking
* All citations are to the NEPA regulations, 40 C.F.R. Parts 1500-1508
unless otherwise specified.
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schedule. (Section 1501.7(a)). The regulations encourage, but do not
require, setting time limits and page limits Cor the EIS, and holding scop-
ing meetings. (Section 1501.7(b)). Aside frcnt these general outlines, the
regulations left the agencies on their own. The Council did not believe,
and still does not, that it is necessary or appropriate to dictate the
specific manner in which over 100 federal agencies should deal with the
public. However, the Oouncil has received several requests for more
guidance. In 1980 we decided to investigate the agency and public response
to the scoping requirement, to find out what was working and what was not,
and to share this with all agencies and the public.
Die Council first conducted its own survey, asking federal agencies to
report scone of their scoping experiences. The Council then contracted with
the American Arbitration Association and Clark McGLennoa Associates to
survey the scoping techniques of major agencies and to study several
innovative methods in detail.* Oouncil staff conducted a two-day workshop
in Atlanta in June 1960, to discuss with federal agency NEEA staff and
several EIS contractors what seems to work best in scoping of differ Kit
types of proposals, and discussed scoping with federal, state and local
officials in meetings in all 10 federal regions.
This document is a distillation of all the work that has been done so far
by many people to identify valuable scoping techniques. It is offered as a
guide to encourage success and to help avoid pitfalls. Since scoping meth-
ods are still evolving, the Oouncil welcomes any ccnraents an this guide,
and may add to it or revise it in coming years.
B. What scoping is and what it can do.
Scoping is often the first contact between proponents of a proposal and the
public. This fact is the source of the power of scoping and of the trepi-
dation that it sometimes evokes. If a scoping meeting is held, people on
both sides of an issue will be in the same roan and, if all goes well, will
speak to each other. The possibilities that flow from c situation are
vast. Therefore, a large portion of this document is devoted to the pro-
ductive management of meetings and the de-fusing of possible heated dis-
agreenents.
Even if a meeting is not held, the scoping process leads EIS preparers to
think about the proposal early on, in order to explain it to the public and
affected agencies. The participants respond with their own concerns about
significant issues and suggestions of alternatives. Thus as the draft EIS
is prepared, it will include, from the beginning, a reflection or at least
an acknowledgement of the cooperating agencies' and the public's concerns.
This reduces the need for changes after the draft is finished, because it
* The results of this examination are reported in "Scoping the Content of
EISs: An Evaluation of Agencies' Experiences," which is available from the
Council or the Resource Planning Analysis Office of the U.S. Geological
Survey, 750 National Center, Reston, Va. 22092.
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reduces the chances of overlooking a significant issue or reasonable alter-
native. It also in many cases increases public confidence in NEPA and
thedecisiomiaking process, thereby reducing delays, such as front
litigation, later on when implementing the decisions. As we will discuss
further in this document, the public generally responds positively when its
views are taken seriously, even if they cannot be wholly accomodated.
But scoping is not simply another "public relations" meeting requirement.
It has specific and fairly limited objectives: (a) to identify the
affected public and agency concerns; (b) to facilitate an efficient EIS
preparation process, through assembling the cooperating agencies, assigning
EIS writing tasks, ascertaining all the related permits and reviews that
must be scheduled concurrently, and setting time or page limits; (c) to
define the issues and alternatives that will be examined in detail in the
EIS while simultaneously devoting less attention and time to issues which
cause no concern; and (d) to save time in the overall process by helping to
ensure that draft statements adequately address relevant issues, reducing
the possibility that new conments will cause a statement to be rewritten or
supplemented.
Sometimes the scoping process enables early identification of a few serious
problems with a proposal, which can be changed or solved because the pro-
posal is still being developed. In these cases, scoping the EIS can actu-
ally lead to the solution of a conflict over the proposed action itself.
We have found that this extra benefit of scoping occurs fairly frequently.
But it cannot be expected in most cases, and scoping can still be consid-
ered successful when conflicts are clarified but not solved. This guide
does not presune that resolution of conflicts over proposals is a principal
goal of scoping, because it is only possible in limited circanstances.
Instead, the Council views the principal goal of scoping to be an adequate
and efficiently prepared EIS. Our suggestions and recommendations are
aimed at reducing the conflicts among affected interests that impede this
limited objective. But we sure aware of the possibilities of more general
conflict resolution that are inherent in any productive discussions among
interested parties. We urge all participants in scoping processes to be
alert to this larger context, in which scoping could prove to be the first
step in environmental problem-solving.
Scoping can lay a firm foundation for the rest of the decisionmaking pro-
cess. If the EIS can be relied upon to include all the necessary informa-
tion for formulating policies and making rational choices, the agency will
be better able to make a sound and prompt decision. In addition, if it is
clear that all reasonable alternatives are being seriously considered, the
public will usually be more satisfied with the choice among them.
II. Advice for Government Agencies Conducting Scoping
A- General context.
Scoping is a process, not an event or a meeting. It continues throughout
the planning for an EIS, and may involve a series of meetings, telephone
conversations, or written conments from different interested groups.
Because it is a process, participants must remain flexible. Ihe scope of
an EIS occasionally may need to be modified later if a new issue surfaces,
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no matter how thorough the scoping was. But it makes sense to try to set
the scope of the statement as early as possible.
Scoping may identify people who already have knowledge about a site or an
alternative proposal or a relevant study, and induce them to make it avail-
able. This can save a lot of research time and money. But people will not
come forward unless they believe their views and materials will receive
serious consideration. Thus scoping is a crucial first step toward buil-
ding public confidence in a fair environmental analysis and ultimately a
fair decisionmaking process.
One further point to remember: the lead agency cannot shed its responsi-
bility to assess each significant impact or alternative even if one is
found after scoping. But anyone who hangs back and tails to raise sane-
thing that reasonably could have been raised earlier on will have a hard
time prevailing during later stages of the NEPA process or if litigation
ensues. Thus a thorough scoping process does provide sane protection
against subsequent lawsuits.
B. Step-by-step through the process.
1. Start scoping after you have enough information.
Scoping cannot be useful until the agency knows enough about the proposed
action to identify most of the affected parties, and to present a coherent
proposal and a suggested initial list of environmental issues and alterna-
tives . Until that time there is no way to explain to the public or other
agencies what you want them to get involved in. So the first stage is to
gather preliminary information frcm the applicant/ or to compose a clear
picture of your proposal, if it is being developed by the agency.
2. Prepare an information packet.
In many cases, scoping of the EIS has been preceded by preparation of an
environmental assessment (EA) as the basis for the decision to proceed with
an EIS. In such cases, the EA will, of course, include the preliminary
information that is needed.
If you have not prepared an EA, you should put together a brief information
packet consisting of a description of the proposal, an initial list of
impacts and alternatives, maps, drawings, and any other material or refer-
ences that can help the interested public to understand what is being pro-
posed. The proposed work plan of the EIS is not usually sufficient for
this purpose. Such docunents rarely contain a description of the goals of
the proposal to enable readers to develop alternatives.
At this stage, the purpose of the information is to enable participants to
make an intelligent contribution to scoping the EIS. Because they will be
helping to plan what will be examined during the environmental review, they
need to know where you are now in that planning process.
Include in the packet a brief explanation of what scoping is, and what pro-
cedure will be used, to give potential participants a context for their
involvement. Be sure to point out that you want comments frcm participants
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on very specific matters. Also reiterate that no decision has yet been
made on the contents of the EIS, much less on the proposal itself. Thus,
explain that you do not yet have a preferred alternative, but that you may
identify the preferred alternative in the draft EIS. (See Section
1502.14(e)). This should reduce the tendency of participants to perceive
the proposal as already a definite plan. Encourage them to focus on recom-
mendations for improvements to the various alternatives.
Some of the complaints alleging that scoping can be a waste of time stem
frcm the fact that the participants may not know what the proposed is until
they arrive at a meeting. Even the most intelligent among us can rarely
make useful, substantive comments on the spur of the moment. Don't expect
helpful suggestions to result if participants are put in such a position.
3. Design the scoping process for each project.
There is no established or required procedure for scoping. The process can
be carried out by meetings, telephone conversations, written carments, or a
combination of all three. It is important to tailor the type, the timing
and the location of public and agency comments to the proposal at hand.
For acample, a proposal to adopt a land management plan for a National
Forest in a sparsely populated region may not lend itself to calling a
single meeting in a central location. While people living in the area and
elsewhere may be interested, any meeting place will be inconvenient for
most of the potential participants. One solution is to distribute the
information packet, solicit written comments, list a telephone number with
the name of the scoping coordinator, and invite comments to be phoned in.
Otherwise, small meetings in several locations may be necessary when
face-to-face communication is important.
In another case, a site-specific construction project may be proposed.
This would be a better candidate for a central scoping meeting. But you
must first find out if anyone would be interested in attending such a
meeting. If you simply assume that a meeting is necessary, you may hire a
hall and a stenographer, assemble your staff for a meeting, an3 find that
nobody shows up. There are many proposals that just do not generate suffi-
cient public interest to cause people to attend another public meeting. So
a wise early step is to contact known local citizens groups and civic
leaders.
In addition, you may suggest in your initial scoping notice and information
packet that all those who desire a meeting should cadi to request one.
That way you will only hear from those who are seriously interested in
attending.
The question of where to hold a meeting is a difficult one in many cases.
Except for site specific construction projects, it may be unclear where the
interested parties can be found. For example, an EIS on a major energy
development program may involve policy issues and alternatives to the pro-
gram that are of interest to public groups all over the nation, and to
agencies headquartered in Washington, D.C., while the physical impacts
might be expected to be felt most strongly in a particular region of the
country. In such a case, if personal contact is desired, several meetings
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would be necessary, especially in the affected region and in Washington, to
enable all interests to be heard.
As a general guide, unless a proposal has no site specific impacts, scoping
meetings should not be confined to Washington. Agencies should try to
elicit the views of people who are closer to the affected regions.
Hie key is to be flexible. It may not be possible to plan the whole scop-
ing process at the outset, unless you know who all the potential players
are. You can start with written eContents, move on to an informal meeting,
and hold further meetings if desired.
There are several reasons to hold a scoping meeting. First, some of the
best effects of scoping stem from the fact that all parties have the oppor-
tunity to meet one another and to listen to the concerns of the others.
There is no satisfactory substitute for personal contact to achieve this
result. If there is any possibility that resolution of underlying con-
flicts over a proposal may be achieved, this is always enhanced by the
development of personal and working relationships among the parties.
Second, even in a conflict situation people usually respond positively when
they are treated as partners in the project review process. If they feel
confident that their views were actually heard and taken seriously, they
will be more likely to be satisfied that the decisionmaking process was
fair even if they disagree with the outcome. It is much easier to show
people that you are listening to them if you hold a face-to-face meeting
where they can see you writing down their points, than if their only con-
tact is through written comments.
If you suspect that a particular proposal could benefit from a meeting with
the affected public at any time during its review, the best time to have
the meeting is during this early scoping stage. The fact that you are
willing to discuss openly a proposal before you have committed substantial
resources to it will often enhance the chances for reaching an accord.
If you decide that a public meeting is appropriate, you still must decide
what type of meeting, or how many meetings, to hold. We will discuss meet-
ings in detail below in "Conducting a Public Meeting." But as part of
designing the scoping process, you must decide between a single meeting and
multiple ones for different interest groups, and whether to hold a separate
meeting for government agency participants.
The single large public meeting brings together all the interested parties,
which has both advantages and disadvantages. If the meeting is efficiently
run, you can cover a lot of interests and issues in a short time. And a
single meeting does reduce agency travel time and expense. In some cases
it may be an advantage to have all interest groups hear each others' con-
cerns, possibly promoting compromise. It is definitely important to have
the staffs of the cooperating agencies, as well as the lead agency, hear
the public views of what the significant issues are; and it will be diffi-
cult and expensive for the cooperating agencies to attend several meetings.
But if there are opposing groups of citizens vho feel strongly on both
sides of an issue, the setting of the large meeting may needlessly create
tension and an emotional confrontation between the groups. Moreover, some
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people may feel intimidated in such a setting, and vron't express themselves
at all.
Hie principal drawback of the large meeting, however, is that it is gener-
ally unwieldy. To keep order, discussion is limited, dialogue is diffi-
cult, and often all participants are frustrated, agency and public alike.
Large meetings can serve to identify the interest groups for future discus-
sion, but often little else is accomplished. Large meetings often become
"events" where grandstanding substitutes for substantive ccnments. Many
agencies resort to a formed hearing-type format to maintain control, and
this can cause resentments among participants who cane to the meeting
expecting a responsive discussion.
For these reasons, we recommend that meetings be kept small and informal,
and that you hold several, if necessary, to accomodate the different inter-
est groups. The other solution is to break a large gathering into anall
discussion groups, which is discussed below. Using either method increases
the likelihood that participants will level with you and communicate their
underlying concerns rather than make an emotional statement just for
effect.
Moreover, in our experience, a separate meeting for cooperating agencies is
quite productive. Working relationships can be forged for the effective
participation of all involved in the preparation of the EIS. Work assign-
ments are made by the lead agency, a schedule may be set for production of
parts of the draft EIS, and information gaps cam be identified early. But
a productive meeting such as this is not possible at the very beginning of
the process. It can only result from the same sort of planning and prepa-
ration that goes into the public meetings. We discuss below the special
problems of cooperating agencies, and their information needs for effective
participation in scoping.
4. Issuing the public notice.
The preliminary look at the proposal, in which you develop the information
packet discussed above, will enable you to tell what kind of public notice
will be most appropriate and effective.
Section 1501.7 of the NEPA regulations requires that a notice of intent to
prepare an EIS must be published in the Federal Register prior to initia-
ting scoping.* This means that one of the appropriate means of giving
* Several agencies have found it useful to conduct scoping for environ-
mental assessments. EAs are prepared where answering the question of
whether an EIS is necessary requires identification of significant
environmental issues; and consideration of alternatives in an EA can
often be useful even where an EIS is not necessary. In both situations
scoping can be valuable. Thus the Council has stated that scoping may
be weed in connection with preparation of an EA, that is, before pub-
lishing any notice of intent to prepare an EIS. As in normal scoping,
appropriate public notice is required, as well as adequate information
on the proposal to make scoping worthwhile. But scoping at this early
stage cannot substitute for the normal scoping process unless the ear-
lier public notice stated clearly that this would be the case, and the
notice of intent expressly provides that written cements suggesting
impacts and alternatives for study will still be considered.
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public notice of the upcoming scoping process could be the same Federal
Register notice. And because the notice of intent must be published
anyway, the scoping notice would be essentially free. But use of the
Federal Register is not an absolute requirement, and other means of public
notice often are more effective, including local newspapers, radio and TV,
posting notices in public places, etc. (See Section 1506.6 of the
regulations.)
What is important is that the notice actually reach the affected public. If
the proposal is an important new national policy in which national environ-
mental groups can be expected to be interested, these groups can be con-
tacted by form letter with ease. (See the Conservation Directory for a
list of national groups.**). Similarly, for proposals that may have major
implications for the business ccninunity, trade associations can be helpful
means of alerting affected groups. Die Federal Register notice can be
relied upon to notify others that you did not know about. But the Federal
Register is of little use for reaching individuals or local groups inter-
ested in a site specific proposal. Therefore notices in local papers, let-
ters to local government officials and personal contact with a few known
interested individuals would be more appropriate. Land owners abutting any
proposed project site should be notified individually.
Remember that issuing press releases to newspapers, and radio and TV sta-
tions is not enough, because they may not be used fcy the media unless the
proposal is considered "newsworthy." if the proposal is controversial, you
can try alerting reporters or editors to an qpocming scoping meeting for
coverage in special weekend sections used by many papers. But placing a
notice in the legal notices section of the paper is the only guarantee that
it will be published.
5. Conducting a public meeting.
In our study of agency practice in conducting scoping, the most interesting
information on what works and doesn't work involves the conduct of meet-
ings. Innovative techniques have been developed, and experience shows that
these can be successful.
Cne of the most important factors turns out to be the training and experi-
ence of the moderator. The U.S. Office of Personnel Management and others
give training courses on how to run a meeting effectively. Specific tech-
niques are taught to keep the meeting on course and to deal with confron-
tations. These techniques are sometimes called "meeting facilitation
skills."
When holding a meeting, the principle thing to remember about scoping is
that it is a process to initiate preparation of an EIS. It is not con-
cerned with the ultimate decision on the proposed. A fruitful scoping pro-
cess leads to an adequate environmental analysis, including all reasonable
** The Conservation Directory is a publication of the National Wildlife
Federation, 1421 16th St., N.W., Washington, D.C. 20036, $4.00.
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alternatives and mitigation measures. This limited goal is in the interest
of all the participants, and thus offers the possibility of agreement by
the parties on this much at least. To run a successful meeting you must
keep the focus on this positive purpose.
At the point of scoping therefore, in one sense all the parties involved
have a common goal, which is a thorough environmental review. If you
emphasize this in the meeting you can stop any grandstanding speeches with-
out a heavy hand, by simply asking the speaker if he or she has any con-
crete suggestions for the group on issues to be covered in the EIS. By
frequently drawing the meeting back to this central purpose of scoping, the
opponents of a proposal will see that you have not already made a decision,
and they will be forced to deal with the real issues. In addition, when
people see that you are genuinely seeking their opinion, some will volun-
teer useful information about a particular subject or site that they may
know better than anyone on your staff.
As we stated above, we found that informal meetings in snail groups are the
most satisfactory for eliciting useful issues and information. Small
groups can be formed in two ways: you can invite different interest groups
to different meetings, or you can break a large number into small groups
for discussion.
One successful model is used by the Army Corps of Engineers, among others.
In cases where a public meeting is desired, it is publicized and scheduled
for a location that will be convenient for as many potential participants
as possible. Hie information packet is made available in several ways, by
sending it to those known to be interested, giving a telephone number in
the public notices for use in requesting one, and providing more at the
door of the meeting place as well. As participants enter the door, each is
given a number. Participants are asked to register their name, address
and/or telephone number for use in future contact during scoping and the
rest of the NEPA process.
The first part of the meeting is devoted to a discussion of the proposal in
general, covering its purpose, proposed location, design, and any other
aspects that can be presented in a lecture format. A question and answer
period concerning this information is often held at this time. Then if
there are more than 15 or 20 attendees at the meeting, the next step is to
break it into small groups for more intensive discussion. At this point,
the numbers held by the participants are used to assign them to small
groups by sequence, randan drawing, or any other method. Each group should
be no larger than 12, and 8-10 is better. The groups are informed that
their task is to prepare a list of significant environnental issues and
reasonable alternatives for analysis in the EIS. These lists will be pre-
sented to the main group and combined into a master list, after the discus-
sion groups are finished. The rules for how priorities are to be assigned
to the issues identified by each group should be made clear before the
large group breaks up.
Seme agencies ask each group member to vote for the 5 or 10 most important
issues. After tallying the votes of individual members, each group vrould
only report out those issues that received a certain nunber of votes. In
this way only those items of most concern to the members would even make
the list compiled by each group. Some agencies go further, and only let
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each group report out the top few issues identified. But you must be
careful not to ignore issues that may be considered a medium priority by
many people, ^.hey may still be important, even if not in the top rank.
Thus instead of simply voting, the members of the groups should rank the
listed issues in order of perceived importance. Points may be assigned to
each item on the basis of the rankings by each member, so that the group
can compile a list of its issues in priority order. Each group should then
be asked to assign cut-off numbers to separate high, medium and low prior-
ity items. Each group should then report out to the main meeting all of
its issues, but with priorities clearly assigned.
One member of the lead agency or cooperating agency staff should join each
group to answer questions and to listen to the participants' expressions of
concern. It has been the experience of many of those who have tried this
method that it is better not to have the agency person lead the group dis-
cussions. There does need to be a leader, who should be chosen by the
group members. In this way, the agency staff member will not be perceived
as forcing his opinions on the others.
If the agency has a sufficient staff of formally trained "meeting facilita-
tors," they may be able to achieve the sane result even where agency staff
people lead the discussion groups. But absent such training, the staff
should not lead the discussion groups. A good technique is to have the
agency person serve as the recording secretary for the group, writing down
each impact and alternative that is suggested for study by the partici-
pants. This enhances the neutral status of the agency representative, and
ensures that he is perceived as listening and reacting to the views of the
group. Frequently, the recording of issues is done with a large pad
mounted on the wall like a blackboard, which has been well received by
agency and public alike, because all can see that the views expressed actu-
ally have been heard and understood.
When the issues are listed, each must be clarified or combined with others
to eliminate duplication or fuzzy concepts. The agency staff person can
actually lead in this effort because of his need to reflect on paper
exactly what the issues are. After the group has listed all the environ-
mental impacts and alternatives and any other issues that the members wish
to have considered, they are asked to discuss the relative merits and
importance of each listed item. The group should be reminded that one of
its tasks is to eliminate insignificant issues. Following this, the mem-
bers assign priorities or vote using one of the methods described above.
The discussion groups are then to return to the large meeting to report on
the results of their ranking. At this point further discussion may be
useful to seek a concensus on which issues are really insignificant. But
the moderator must not appear to be ruthlessly eliminating issues that the
participants ranked of high or medium importance. The best that can
usually be achieved is to "deemphasize" some of them, by placing them in
the low priority category.
6. What to do with the acuments.
After you have comments from the cooperating agencies and the interested
public, you must evaluate them and make judgments about which issues are in
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7. Allocating work assignments and setting schedules.
Following the public participation in whatever form, and the selection of
issues to be covered, the lead agency must allocate the EIS preparation
work among the available resources. If there are no cooperating agencies,
the lead agency allocates work among its own personnel or contractors. If
there are cooperating agencies involved, they may be assigned specific
research or writing tasks. The NEPA regulations require that they normally
devote their own resources to the issues in which they have special exper-
tise or jurisdiction by law. (Sections 1501.6(b)(3), (5), and
1501.7(a)(4)).
In all cases, the lead agency should set a schedule for completion of the
work, designate a project manager and assign the reviewers, and must set a
time limit for the entire NEPA analysis if revested to do so by an appli-
cant. (Section 1501.8).
8. A few ideas to try.
a. Ftoute design workshop
As part of a scoping process, a successful innovation by one agency
involved route selection for a railroad. The agency invited representa-
tives of the interested groups (identified at a previous public meeting) to
try their hand at designing alternative routes for a proposed rail segoent.
Agency staff explained design constraints and evaluation criteria such as
the desire to minimize damage to prime agricultural land and valuable wild-
life habitat. The participants were divided into small groups for a few
hours of intensive work. After learning of the real constraints on alter-
native routes, the participants had a better understanding of the agency's
and applicant's viewpoints. Two of the participants actually supported
alternative routes that affected their own land because the overall impacts
of these routes appeared less adverse.
The participants were asked to rank the five alternatives they had devised
and the top two were included in the EIS. But the agency did not permit
the groups to apply the same evaluation criteria to the routes proposed by
the applicant or the agency. Thus public confidence in the process was not
as high as it could have been, and probably was reduced when the
applicant's proposal was ultimately selected.
The Council recommends that vrtien a hands-on design workshop is used, the
assignment of the group be expanded to include evaluation of the reason-
ableness of all the suggested alternatives.
b. Hotline
Several agencies have successfully used a special telephone nunber, essen-
tially a hotline, to take public canments before, after, or instead of a
public meeting. It helps to designate a named staff member to receive
these calls so that sane continuity and personal relationships can be
developed.
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fact significant and which ones are not. The decision of what the EIS
should contain is ultimately made by the lead agency. But you will now
know what the interested participants consider to be the principal areas
for study and analysis. You should be guided by these concerns, or be
prepared to briefly explain why you do not agree. Every issue that is
raised as a priority matter during scoping should be addressed in some man-
ner in the EIS, either by irv-depth analysis, or at least a short explana-
tion showing that the issue was examined, but not considered significant
for one or more reasons.
Some agencies have complained that the time savings claimed for scoping
have not been realized because after public groups raise nunerous minor
matters, they cannot focus the EIS on the significant issues. It is true
that it is always easier to add issues than it is to subtract them during
scoping. And you should realize that trying to eliminate a particular
environmental impact or alternative from study may arouse the suspicions of
some people. Oooperating agencies may be even more reluctant to eliminate
issues in their areas of special expertise than the public participants.
But the way to approach it is to seek concensus on which issues are less
important. These issues may then be deemphasized in the EIS by a brief
discussion of why they were not examined in depth.
If no concensus can be reached, it is still your responsibility to select
the significant issues. Hie lead agency cannot abdicate its role and sim-
ply defer to the public. Thus a group of participants at a scoping meeting
should not be able to "vote" an insignificant matter into a big issue. If
a certain issue is raised and in your professional judgment you believe it
is not significant, explain clearly and briefly in the EIS why it is not
significant. There is no need to devote time and pages to it in the EIS if
you can show that it is not relevant or important to the proposed action.
But you should address in some manner all matters that were raised in the
scoping process, either by an extended analysis or a brief explanation
showing that you acknowledge the concern.
Several agencies have made a practice of sending out a post-scoping docu-
ment to make public the decisions that have been made on what issues to
cover in the EIS. This is not a requirement, but in certain controversial
cases it can be worthwhile. Especially when scoping has been conducted by
written cements, and there has been no face-to-face contact, a post-
scoping docunent is the only assurance to the participants that they were
heard and understood until the draft EIS canes out. Agencies have acknow-
ledged to us that "letters instead of meetings seem to get disregarded eas-
ier." Thus a reasonable quid pro quo for relying on comment letters vrould
be to send out a post-scoping docunent as feedback to the cammentors.
The post-scoping document may be as brief as a list of impacts and alterna-
tives selected for analysis; it may consist of the "scope of work" produced
by the lead and cooperating agencies for their own EIS work or for the con-
tractor; or it may be a special document that describes all the issues and
explains why they were selected.
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c. Videotape of sites
A videotape of proposed sites is an excellent tool for explaining site dif-
ferences and limitations during the lecture-format part of a scoping
meeting.
d. Videotape meetings
One agency has videotaped whole scoping meetings. Staff found that the
participants took their roles more seriously and the taping appeared not to
precipitate grandstanding tactics.
e. Review committee
Success has been reported from one agency which sets up review committees,
representing all interested groups, to oversee the scoping process. The
committees help to design the scoping process. In cooperation with the
lead agency, the committee reviews the materials generated by the scoping
meeting. Again, however, the final decision on EIS content is the respon-
sibility of the lead agency.
f. Oonsultant as meeting moderator
In sane hotly contested cases, several agencies have used the EIS consul-
tant to actually run the scoping meeting, this is permitted under the NEPA
regulations and can be useful to de-fuse a tense atmosphere if the consul-
tant is perceived as a neutral third party. But the responsible agency
officials must attend the meetings. There is no substitute for developing
a relationship between the agency officials and the affected parties.
Moreover, if the responsible officials are not prominently present, the
public may interpret that to mean that the oonsultant is actually making
the decisions about the EIS, and not the lead agency.
g. Money saving tips
Remember that money can be saved by using conference calls instead of meet-
ings, tape-recording the meetings instead of hiring a stenographer, and
finding out whether people want a meeting before announcing it.
C. Pitfalls.
We list here some of the problems that have been experienced in certain
scoping cases, in order to enable others to avoid the same difficulties.
1. Closed meetings.
In response to informal advice from CEQ that holding separate meetings for
agencies and the public would be permitted under the regulations and could
be more productive, one agency scheduled a scoping meeting for the coopera-
ting agencies seme weeks in advance of the public meeting. Apparently, the
lead agency felt that the views of the cooperating agencies would be more
candidly expressed if the meeting were closed. In any event, several mem-
bers of the public learned of the meeting and asked to be present. The
lead agency acquiesced only after newspaper reporters were able to make a
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story out of the closed session. At the meeting, the members of the public
were informed that they would not be allowed to speak, nor to record the
proceedings. Hie ill feeling aroused by this chain of events may not be
repaired for a long time. Instead, we would suggest the following
possibilities:
a. Although separate meetings for agencies and public groups may be
more efficient, there is no magic to them. By all means, if someone
insists on attending the agency meeting, let him. There is nothing as
secret going on there as he may think there is if you refuse him
admittance. Better yet, have your meeting of cooperating agencies after
the public meeting. That may be the most logical time anyway, since only
then can the scope of the EIS be decided upon and assignments made among
the agencies. If it is well done, the public meeting will satisfy most
people and show them that you are listening to them.
b. Always permit recording. In fact, you should suggest it for
public meetings. All parties will feel better if there is a record of the
proceeding. There is no need for a stenographer, and tape is inexpensive.
It may even be better then a typed transcript, because staff and decision-
makers who did not attend the meeting can listen to the exchange and may
learn a lot about public perceptions of the proposal.
c. When people are admitted to a meeting, it makes no sense to refuse
their requests to speak. However, you can legitimately limit their state-
ments to the subject at hand—scoping. You do not have to permit seme
participants to waste the others* time if they refuse to focus on the
impacts and alternatives for inclusion in the EIS. Having a tape of the
proceedings could be useful after the meeting if there is seme question
that speakers were improperly silenced. But it takes an experienced moder-
ator to handle a situation like this.
d. The scoping stage is the time for building confidence and trust on
all sides of a proposal, because this is the only time when there is a
cannon enterprise. The attitudes formed at this stage can carry through
the project review process. Certainly it is difficult for things to get
better. So foster the good will as long as you can by listening to what is
being said during scoping. It is possible that out of that dialogue may
appear recommendations for changes and mitigation measures that can turn a
controversial fight into an acceptable proposal.
2. Contacting interested groups.
Sane problems have arisen in scoping where agencies failed to contact all
the affected parties, such as industries or state and local governments.
In one case, a panel was assembled to represent various interests in
scoping an EIS on a wildlife-related program. The agency had an excellent
format for the meeting, but the panel did not represent industries that
would be affected by the program or interested state and local governments.
As a result, the EIS may fail to reflect the issues of concern to these
parties.
Another agency reported to us that it failed to contact parties directly
because staff feared that if they missed someone they would be accused of
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favoritism. Thus they relied on the issuance of press releases which were
not effective. Many people who did not learn about the meetings in time
sought additional meeting opportunities, which cost extra money and delayed
the process.
In our experience, the attempt to reach people is worth the effort. Even
if you miss someone, it will be clear that you tried. You can enlist a few
representatives of an interest group to help you identify and contact
others. Trade associations, chambers of commerce, local civic groups, and
local and national conservation groups can spread the voi"* to members.
3. Tiering.
Many people are not familiar with the way environmental impact statements
can be "tiered" under the NEPA regulations, so that issues are examined in
detail at the stage that decisions on them are being made. See Section
1508.28 of the regulations. Fbr exanple, if a proposed program is under
review, it is possible that site specific actions are not yet proposed. In
such a case, these actions are not addressed in the EIS on the program, but
are reserved for a later tier of analysis. If tiering is being used, this
concept must be made clear at the outset of any scoping meeting, so that
participants do not concentrate on issues that are not going to be addres-
sed at this time. If you can specify when these other issues will be
addressed it will be easier to convince people to focus on the matters at
hand.
4. Scoping for unusual programs.
One interesting scoping case involved proposed changes in the Endangered
Species Program. Among the impacts to be examined were the effects of this
conservation program on user activities such as mining, hunting, an3 timber
harvest, instead of the other way around. Because of this reverse twist in
the impacts to be analyzed, seme participants had difficulty focusing on
useful issues. Apparently, if the subject of the EIS is unusual, it will
be even harder than normal for scoping participants to grasp what is
expected of them.
In the case of the Endangered Species Program EIS, the agency planned an
intensive 3 day scoping session, successfully involved the participants,
and reached accord on severed issues that would be important for the future
implementation of the program. But the participants were unable to focus
on impacts and program alternatives for the EIS. We suggest that if the
intensive session had been broken up into 2 or 3 meetings separated by days
or weeks, the participants might have been able to get used to the new way
of thinking required, and thereby to participate more productively. Pro-
grammatic proposals are often harder to deal with in a scoping context than
site specific projects. Thus extra care should be taken in explaining the
goals of the proposal and in making the information available well in
advance of any meetings.
D. Lead and Cooperating Agencies.
Seme problems with scoping revolve around the relationship between lead and
cooperating agencies. Some agencies are still uncomfortable with these
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roles. The NEPA regulations, and the 40 Questions and Answers about the
NEPA Regulations, 46 Fed. Reg. 18026, ( March 23, 1981) describe in detail
the way agencies are now asked to cooperate on environmental analyses.
(See Questions 9, 14, and 30.) We will focus here on the early phase of
that cooperation.
It is important for the lead agency to be as specific as possible with the
cooperating agencies. Tell them what you want them to contribute during
scoping: environmental impacts and alternatives. Same agencies still do
not understand the purpose of scoping.
Be sure to contact and involve representatives of the cooperating agencies
who are responsible for NEPA-related functions. The lead agency will need
to contact staff of the cooperating agencies who can both help to identify
issues and alternatives and ccrarait resources to a study, agree to a sched-
ule for EIS preparation, or approve a list of issues as sufficient. In
sane agencies that will be at the district or state office level (e.g.,
Corps of Engineers, Bureau of Land Management, and Soil Conservation Serv-
ice) for all but exceptional cases. In other agencies you must go to
regional offices for scoping oonnients and ccranitments (e.g., EPA, Fish and
Wildlife Service, Water and Power Resources Service). In still others, the
field offices do not have NEPA responsibilities or expertise and you will
deal directly with headquarters (e.g., Federal Energy Regulatory Coramis-
sion, Interstate Commerce Commission). In all cases you are looking for
the office that can give you the answers you need. So keep trying until
you find the organizational level of the cooperating agency that can give
you useful information and that has the authority to make ccnmitinents.
As stated in 40 Questions and Answers about the NEPA Regulations, the lead
agency has the ultimate responsibility for the content of the EIS, but if
it leaves out a significant issue or ignores the advice and expertise of
the cooperating agency, the EIS may be found later to be inadequate. (46
Fed. Reg. 18030, Question 14b.) At the same time, the cooperating agency
will be concerned that the EIS contain material sufficient to satisfy its
decisionmaking needs. Thus, both agencies have a stake in producing a doc-
ument of good quality. The cooperating agencies should be encouraged not
only to participate in scoping but also to review the decisions made by the
lead agency about what to include in the EIS. Lead agencies should allow
any information needed by a cooperating agency to be included, and any
issues of concern to the cooperating agency should be covered, but it
usually will have to be at the expense of the cooperating agency.
Cooperating agencies have at least as great a need as the general public
for advance information on a proposal before any scoping takes place.
Agencies have reported to us that information frcm the lead agency is often
too sketchy or comes too late for informed participation. Lead agencies
must clearly explain to all cooperating agencies what the proposed action
is conceived to be at this time, and what present alternatives and issues
the lead agency sees, before expecting other agencies to devote time and
money to a scoping session. Informal contacts among the agencies before
scoping gets underway are valuable to establish what the cooperating
agencies will need for productive scoping to take place.
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Sane agencies will be called upon to be cooperators more frequently than
others, and they may lack the resources to respond to the numerous
requests. The NEPA regulations permit agencies without jurisdiction by law
(i.e., no approval authority over the proposal) to decline the cooperating
agency role. (Section 1501.6(c)). But agencies that do have jurisdiction
by law cannot opt out entirely and may have to reduce their cooperating
effort devoted to each EIS. (See Section 1501.6(c) and 40 Questions and
Answers about the NEPA Regulations, 46 Fed. Reg. 18030, Question 14a.)
Thus, cooperators would be greatly aided by a priority list from the lead
agency showing which proposals most need their help. It" ~ will lead to a
more efficient allocation of resources.
Some cooperating agencies are still holding back at the scoping stage in
order to retain a critical position for later in the process. They either
avoid the scoping sessions or fail to contribute, and then raise objections
in comments on the draft EIS. We cannot emphasize enough that the whole
point of scoping is to avoid this situation. As we stated in 40 Questions
and Answers about the NEPA Regulations, "if the new alternative [or other
issue] was not raised by the carmentor during scoping, but could have been,
carmen tors may find that they are unpersuasive in their efforts to have
their suggested alternative analyzed in detail by the [lead] agency." (46
Fed. Reg. 18035, Question 29b.)
III. Advice for Public Participants
Scoping is a new opportunity for you to enter the earliest phase of the
decisionmaking process on proposals that affect you. Through this process
you have access to public officials before decisions are made and the right
to explain your objections and concerns. But this opportunity carries with
it a new responsibility. No longer may individuals hang back until the
process is almost complete and then spring forth with a significant issue
or alternative that might have been raised earlier. You are now part of
the review process, and your role is to inform the responsible agencies of
the potential impacts that should be studied, the problems a proposal may
cause that you foresee, and the alternatives and mitigating measures that
offer promise.
As noted above, and in 40 Questions and Answers, no longer will a comment
raised for the first time after the draft EIS is finished be accorded the
same serious consideration it would otherwise have merited if the issue had
been raised during scoping. Thus you have a responsibility to came forward
early with known issues.
In return, you get the chance to meet the responsible officials and to make
the case for your alternative before they are committed to a course of
action. To a surprising degree this avenue has been found to yield satis-
factory results. There's no guarantee, of course, but when the alternative
you suggest is really better, it is often hard for a decisionmaker to
resist.
Biere are severed problems that commonly arise that public participants
should be aware of:
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A. Public input is often only negative
The optimal timing of scoping within the NEPA process is difficult to
judge. Cn the one hand, as explained above (Section II.B.l.), if it is
attempted too early, the agency cannot explain what it has in mind and
informed participation will be impossible. Cn the other, if it is delayed,
the public may find that significant decisions are already made, and their
comments may be discounted or will be too late to change the project. Same
agencies have found themselves in a tactical cross-fire when public criti-
cism arises before they can even define their proposal sufficiently to see
whether they have a worthwhile plan. Understandably, they would be reluc-
tant after such an experience to invite public criticism early in the plan-
ning process through open scoping. But it is in your interest to encourage
agencies to cane out with proposals in the early stage because that enhan-
ces the possibility of your carments being used. Thus public participants
in scoping should reduce the emotion level wherever possible and use the
opportunity to make thoughtful, rationed presentations on inpacts and
alternatives. Polarizing over issues too early hurts all parties. If
agencies get positive and useful public responses from the scoping process,
they will more frequently ccme forward with proposals early enough so that
they can be materially improved by your suggestions.
B. Issues are too broad
The issues that participants tend to identify during scoping are much too
broad to be useful for analytical purposes. For example, "cultural
impacts" — what does this mean? What precisely are the impacts that
should be examined? When the EIS preparers encounter a eminent as vague as
this they will have to make their own judgnent about what you meant, and
you may find that your issues are not covered. Thus, you should refine the
broad general topics, and specify which issues need evaluation and
analysis.
C. Impacts are not identified
Similarly, people (including agency staff) frequently identify "causes" as
issues but fail to identify the principal "effects" that the EIS should
evaluate in depth. For example, oil and gas development is a cause of many
impacts. Simply listing this generic category is of little help. You must
go beyond the obvious causes to the specific effects that are of concern.
If you want scoping to be seen as more than just another public meeting,
you will need to put in extra work.
IV. Brief Points For Applicants.
Scoping can be an invaluable part of your early project planning. Your
main interest is in getting a proposal through the review process. This
interest is best advanced by finding out early where the problems with the
proposal are, who the affected parties are, and where accomodations can be
made. Scoping is an ideal meeting place for all the interest groups if you
have not already contacted them. In several cases, we found that the can-
promises made at this stage allowed a project to move efficiently through
the permitting process virtually unopposed.
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Die NEPA regulations place an affirmative obligation on agencies to "pro-
vide for cases where actions are planned by private applicants" 90 that
designated staff are available to consult with the applicants, to advise
applicants of information that will be required during review, and to
insure that the NEPA process canmences at the earliest possible time.
(Section 1501.2(d)). This section of the regulations is intended to ensure
that environmental factors are considered at an early stage in the appli-
cant's planning process. (See 40 Questions and Answers about the NEPA
Regulations, 46 Fed. Reg. 18028, Questions 8 and 9.)
Applicants should take advantage of this requirement in the regulations by
approaching the agencies early to consult on alternatives, mitigation
requirements, and the agency's information needs. This early contact with
the agency can facilitate a prompt initiation of the scoping process in
cases where an EIS will be prepared. You will need to furnish sufficient
information about your proposal to enable the lead agency to formulate a
coherent presentation for cooperating agencies and the public. But don't
wait until your choices sure all made and the alternatives have been
el iminated. (Section 1506.1).
During scoping, be sure to attend any of the public meetings unless the
agency is dividing groups by interest affiliation. You will be able to
answer any questions about the proposal, and even more important, you will
be able to hear the objections raised, and find out what the real concerns
of the public are. This is, of course, vital information for future nego-
tiations with the affected parties.
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PARTICIPANTS OF EIS CONFERENCE OCTOBER 22-23, 1981
U. S. DEPARTMENT OF AGRICULTURE
Forest Service
Chris Glover
U. S. Forest Service
1720 Peachtree St., N.W.
Atlanta, Georgia 30367
Jean Paul Kruglewicz
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
William R. Phelps
U. S. Forest Service
1720 Peachtree Street, N. W.
Atlanta, Georgia 30367
Robert Spivey
U. S. Forest Service
1720 Peachtree Street, N. W.
Atlanta, Georgia 30367
Robert Williams
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
Soil Conservation Service
Stewart Calvert
SCS
333 Waller Avenue
Lexington, Kentucky
M. E. Cribbs
SCS, Suite 1321
100 West Capital Street
Jackson, Mississippi
COMM. 404/881-2242
FTS. 257-2242
404/881-2242
257-2242
404/881-2242
257-2242
404/881-2242
257-2242
404/881-2242
257-2242
404/233-2750
355-2750
601/969-4335
490-4335
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W. Mason Dollar
SCS
138 South Gay Street
Auburn, Alabama
COMM. 205/821-8070
FTS. 534-4574
Max R. Goodman
SCS
P. 0. Box 661
New Albany, Mississippi 40504
Allan Heard
SCS
3 33 Waller Avenue
Lexington, Kentucky
J. Torbit Henry
SCS
138 S. Gay Street
Auburn, Alabama
W. T. Holmes
SCS
P.O. BOX 1160
Greenwood, Mississippi 38930
Ottie Johnson
SCS
P. 0. BOX 1208
Gainsville, Florida 32602
601/534-4251
606/233-2747
355-2747
205/821-8070
534-4574
601/455-2750
904/377-8732
946-7201
Fred Keeter
SCS
Suite 1321
100 West Capitol Street
Jackson, Mississippi
Danny K. Nelson
SCS
P. O. Box 1208
Gainesville, Florida 32602
Bobby Reeves
SCS
138 S. Gay Street
Auburn, Alabama
601/969-4335
490-4335
904/377-8732
946-7201
205/821-8070
534-4574
Dr. Marc Safley
SCS
P. 0. Box 2890
Washington, D. C.
20013
202/447-9529
447-9529
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Stephen A. Sewell
SCS
675 U. S. Courthouse
Nashville, Tennessee
COMM. 615/251-5873
FTS. 852-5873
N. E. Shuler
SCS
1835 Assembly St., Rm. 950 803/765-5681
Columbia, South Carolina 677-5681
Ray Swicegood
SCS 404/546-2116
Athens, GA 30601 250-2116
Gary L. Tyre
SCS
P. 0. Box 832 404/546-2114
Athens, Georgia 250-2114
U. S. DEPARTMENT OF INTERIOR
James H. Lee
Regional Environmental Officer
U. S. Department of Interior
Room 1412,
Richard Russell Federal Building 404/221-4524
Atlanta, Georgia 30303 242-4524
Fish and Wildlife Service
Ken Butts
Fish and Wildlife Service
75 Spring Street S. W.
Atlanta, Georgia 30303
Dennis Chase
Fish and Wildlife Service
75 Spring Street, S. W.
Atlanta, Georgia 30303
Steve Gilbert
Fish and Wildlife Service
P. O. Box 12559
Charleston, South Carolina
404/221-3548
242-3548
404/221-6343
242-6343
803/724-4707
677-4704
Joe Hardy
Fish and Wildlife Service
75 Spring Street, S. W.
Atlanta, Georgia 30303
404/221-3580
242-3580
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Harold Wahlquist
Fish and Wildlife Service
7 5 Spring Street, S. W.
Atlanta, Georgia 30303
Bureau of Land Management
Mary R. Bartz
Bureau of Land Management
Room 841, 500 Camp Street
New Orleans, Louisiana 70130
Jack Holt
Bureau of Land Management
500 Cairp Street
New Orleans, Louisiana 70130
Jake Lehman
Bureau of Land Management
New Orleans, Louisiana 70130
National Park Service
William Appel
Recreation Services Branch
75 Spring Street, S. W.
Atlanta, Georgia 30303
Wallace Brittain
National Park Service
7 5 Spring Street, S. W.
Atlanta, Georgia 30303
Michael Duwe
National Park Service
7 5 Spring Street., S. W.
Atlanta, Georgia 30303
Wallace H. Jones
National Park Service
7 5 Spring Street, S. W.
Atlanta, Georgia 30303
Sharon King
National Park Service
7 5 Spring Street, S. W.
Atlanta, Georgia 30303
William T. Springer
National Park Service
75 Spring Street, S. W.
Atlanta, Georgia 30303
404/221-3580
242-3580
504/589-6541
682-6541
504/589-6541
682-6541
504/589-6541
682-6541
404/221-2618
242-2618
404/221-5838
242-5838
404-221-2619
242-2619
404/221-2611
242-2611
404/221-2611
242-2611
404/221-5835
242-5835
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Fred Van Vonro
National Park Service
75 Spring Street, S. W.
Atlanta, Georgia 30303
Sarah H. Zimny
National Park Service
75 Spring Street, S. W.
Atlanta, Georgia 30303
404/221-2611
242-2611
404/221-5838
242-5838
DEPARTMENT OF DEFENSE
U. S. Army Corps of Engineers (Civil Works)
South Atlantic Division
Mary Anne Cooper
Corps of Engineers, South Atlantic Div.
Title Building, 30 Pryor Street 404/221-4580
Atlanta, GA 30303 242-4580
Ard L. Eulenteld
Corps of Engineers, South Atlantic Div.
Title Building, 30 Pryor Street
Atlanta, Georgia 30303
L. C. Fowler
Corps of Engineers, Savannah District
P. 0. Box 889
Savannah, Georgia
Lt. Col. Walter L. Heme
Corps of Engineers, Savannah District
P. 0. Box 889
Savannah, Georgia
Richard Jackson
Corps of Engineers, Wilmington District
P. 0. Box 1890
Wilmington, North Carolina 28402
Marc Rucker
Corps of Engineers, South Atlantic Div.
Title Building, 30 Pryor Street
Atlanta, Georgia 30303
John Rushing
Corps of Engineers, South Atlantic Div.
Title Building, 30 Pryor Street
Atlanta, Georgia 30303
404/221-4580
242-4580
912/944-5834
234-5834
912/944-5224
248-5224
919/343-4745
671-4745
404/221-6043
242-6043
404/221-4580
242-4580
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Jim Stirling
Corps of Engineers, South Atlantic Div.
Title Building
30 Pryor Street COMM.
Atlanta, Georgia 30303 FTS.
George Strain
Corps of Engineers, South Atlantic Div.
Title Building, 30 Pryor Street
Atlanta, Georgia 30303
404/221-6754
242-6754
404/221-4580
242-4580
David J. Wahus
Corps of Engineers,
P. 0. Box 889
Savannah, Georgia
Savannah District
31402
912/944-5224
248-5224
Colonel Hugh West
Corps of Engineers, South Atlantic Division
Title building, 30 Pryor Street 404/221-4580
Atlanta, Georgia 30303 242-4580
Office, Chief of Engineers
Richard L. Makinen
Corps of Engineers, Office, Chief of Engineers
20 Mass. Avenue, N. W. 202/272-0120
Washington, D. C. 20314 272-0120
Lance D. Wood
Corps of Engineers, Office, Chief of Engineers
20 Mass. Avenue, N. W. 202/272-0120
Washington, D. C. 20314 272-0120
Lower Mississippi Valley Division
Eugene G. Buglewicz
Corps of Engineers
P. 0. Box 80
Vicksburg, Mississippi
39180
601/634-5856
542-5856
Andrew Grosso
Corps of Engineers
668 Clifford Davis Federal Bldg.
Memphis, Tennessee 38703
Morris Mauney
Corps of Engineers, Memphis District
668 Clifford Davis Federal Bldg.
Memphis, Tennessee 38103
901/521-3857
222-3857
901/521-3857
222-3857
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Terry Rodery
Corps of Engineers, Memphis District
668 Clifford Davis Federal Building
Memphis, Tennessee 38103
Rob Roghman
Corps of Engineers, Memphis District
668 Clifford Davis Federal Building
Memphis, Tennessee 38103
Mike Strachn
Corps of Engineers, Vicksburg District
P. O. Box 60
Vicksburg, Misissippi
John Weber
Corps of Engineers, New Orleans District
P. 0. Box 60267
New Orleans, Louisiana 70160
901/521-3857
222-3857
901/521-3857
222-3857
601/636-5429
542-5429
504/838-2516
687-2516
North Atlantic Division
Terry Getchell
Corps of Engineers
803 Front Street
Norfolk, Virginia 23510
804/441-3657
827-3657
Bob Hume
Corps of Engineers
803 Front Street
Norfolk, Virginia 23510
Ohio River Division
804/441-3657
827-3657
Ed Goodno
Corps of Engineers
P. 0. Box 2127
Huntington, West Virginia 25721
Jeremiah Parsons
Corps of Engineers
P. 0. Box 1159
Cincinnati, Ohio
304/529-5712
924-5712
513/684-3077
684-3077
Robert Woodyard
Corps of Engineers,
Louisville District
P. O. Box 59
Louisville, Kentucky 40201
502/582-5696
352-5696
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Roderick A. Chisholm
Corps of Engineers
San Francisco, California
U. S. Army
Julian A. Brown
U. S. Array - Fort McPherson
AFZK-EH-C, Building 358
Fort McPherson, Georgia 30330
Ray Clark
USAMPS & CS Training Center
Fort McClellan, Alabama
COMM. 404/752-3702
COMM. 205/238-3019
FTS. 229-1000
John J. Fittipaldi
U. S. Army-Const. Eng. Research Lab
P. O. Box 4005
Champaign, Illinois 61820
Jim Fletcher
U. S. Army
3 246 Teton Drive
Atlanta, Georgia
Timothy M. Mullen
U. S. Array Infantry Center
DFE-Env. Management Office
Fort Benning, Georgia
Thomas E. Newkirk
U. S. Army Training & Doctrine Command
Fort Monroe, Virginia 23651
Luke Owen
U. S. AMPS & CS Training Center
Fort McClellan, Alabama
217/352-6511
958-7354
404/752-2195
404/545-4766
804/727-3300
931-3335
205/238-3019
229-1000
J. B. Parker
Director of Facility Engineers
U. S. Army
Fort Bragg, North Carolina 28307
919/396-8207
Robert G. Reyns
DFE Environmental Office
Fort Jackson, South Carolina
29207
803/751-4911
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U. S. Air Force
Winfred G. Dodson
Air Force Regional Civil Engineers
Eastern Region
Title Building
30 Pryor Street COMM. 404-221-6776
Atlanta, Georgia 30303 FTS. 242-6776
Gary L. Jacks
U. S. Air Force
AFESC/DEV 904/283-6192
Tyndall AFB, Florida
Captain Peter F. Jaskilka
Air Force Engineering and
Services Center 904/283-6191
Tyndall AFB, Florida 32403
W. Allen Nixon
U. S. Air Force
HQ AFESC/DEV 904/283-6163
Tyndall AFB, Florida
U. S. Marine Corps
Rebecca A. Herbig
MCAS Cherry Pt., Building 414, Stop 1 919/466-3631
Cherry Point, North Carolina 28560
David Vann Marshburn
Marine Corps Base 914/451-1833
Camp LeJeune, North Carolina
Danny Sharpe
Base Maintenance Division
U. S. Marine Corps 919/451-5003
Camp LeJeune, North Carolina
U. S. Navy
George Cameron Barcus
Naval Training Equipment Center 646-4426
Orlando, Florida 32813
Laurens M. Pitts
Naval Facilities Engineering Command
P. 0. Box 10068 803/743-5510
Charleston, South Carolina 29411 679-5510
LCDR E. C. Rushing, Jr.
Officer in Charge of Construction 912/673-2303
TRIDENT
NSSB Kings Bay, Georgia 31547
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Bo Thompson
U. S. Navy
Orlando, Florida
John C. Wilkins
Naval Facilities Engineering Command
P. 0. Box 10068 COMM.
Charleston, South Carolina FTS.
U. S. DEPARTMENT OF TRANSPORTATION
U. S. Coast Guard
803/743-5510
679-5510
Marvin Barnes
U. S. Coast Guard
Portsmouth, Virginia
Lt. James J. Lober, Jr.
Commander, Eighth Coast Guard District
500 Camp Street
New Orleans, Louisiana 70458
804/398-9276
827-9276
504/589-2961
682-2961
Eric J. Wolfe
U. S. Coast Guard
51 S. W. 1st Avenue
Miami, Florida 33130
305/350-5502
350-5502
Federal Aviation Administration
T. M. Ackerman
FAA
3400 Norman Berry Dr.
East Point, Georgia 30320
Rick Faber
FAA
P. 0. Box 20636
Atlanta, Georgia 30320
Jeff Griffith
FAA
P. O. Box 20636
Atlanta, Georgia 30320
Thomas J. Hoffman
FAA
P. 0. Box 20636
Atlanta, Georgia 30320
404/763-7756
246-7756
404/763-7756
246-7756
404/763-7756
246-7756
404/763-7756
246-7756
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Robert H. Johnson
FAA
P. 0. Box 20636
Atlanta, Georgia 30320
404/763-7756
246-7756
Harold E. Little
FAA
1568 Willingtan Dr.
College Park, Georgia
Melvin L. Mitchell
FAA
P. 0. Box 20636
Atlanta, Georgia 30320
Emily Trapnell
FAA
P. 0. Box 20636
Atlanta, Georgia
R. T. Smith
FAA
P. 0. 20636
Atlanta, Georgia
404/763-7756
246-7639
404/763-7756
246-7756
404/763-7756
246-7756
404/763-7756
246-7756
Travis Watson
FAA
3400 Norman Berry Drive
East Point, Georgia 30320
404/763-7756
246-7756
Arthur K. Weathers
FAA
3400 Norman Berry Drive
East Point, Georgia 30320
Otis T. Welch
FAA- Airports District Office
3973 Knight Arnold Road., Suite 103
Memphis, Tennessee 38118
404/763-7756
246-7756
901/521-3495
222-3495
Federal Highway Administration
Eugene W. Cleckley
Associate Regional Administrator
for Planning and Development
1720 Peachtree Road, N. W. , Suite 200 404/881-4997
Atlanta, Georgia 30367 257-4997
Dave Densmore
Federal Highway Administration
1422 W. Peachtree St., N. W. 404/881-4758
Atlanta, Georgia 257-4758
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Dwight A. Horne
Federal Highway Administration
1422 W. Peachtree St., N. W.
Atlanta, Georgia
404/881-4758
257-4758
Joseph Huerta
Federal Highway Administration
1422 W. Peachtree St., N. W.
Atlanta, Georgia
404/881-4758
257-4758
George Osborne
Federal Highway Administration
1720 Peachtree Street
Atlanta, Georgia
Walter Lee Reynolds
Federal Highway Administration
1422 W. Peachtree Street, Suite 700
Atlanta, Georgia
Urban Mass Transportation
Jody B. Sloan
Urban Mass Transportation
1720 Peachtree Street, Suite 400
Atlanta, Georgia 30309
404/881-4067
257-4067
404/881-4658
257-4658
404/881-7875
257-7875
STATE HIGHWAY DEPARTMENTS
Alabama
Bill Carwile
Alabama Highway Department
11 S. Union Street 203/832-5593
Montgomery, Alabama 36130
Florida
C. L. Irwin
Florida Department of Transportation
605 Suwannee Street 904/487-1435
Tallahassee, Florida
Georgia
Ronald R. Brown
Georgia Department of Transportation
65 Aviation Circle 404/696-4634
Atlanta, Georgia
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Toni D. Gardner
Georgia Department of Transportation
65 Aviation Circle COMM.
Atlanta, Georgia 30336
Peter Malphurs
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
James S. Schell
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
Paul Skemke
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
A1 Tate
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
Ellen Whitlock
Georgia Department of Transportaion
65 Aviation Circle
Atlanta, Georgia 30336
404/696-4634
404/696-4634
404/696-4634
404/696-4634
404/696-4634
404/696-4634
Mississippi
W. K. Magee
Mississippi State Highway Department
P. 0. Box 1850
Jackson, Mississippi 39205
601/354-7355
Tennessee
Ben L. Smith
Tennessee Department of Transportation
Suite 900, Polk Building 615/741-3653
Nashville, Tennessee 37219
NUCLEAR RGULATORY COMMISSION
Ronald L. Ballard
U. S. Nuclear Regulatory Commission
(Mail AR 5200)
Washington, D.C. 20555 492-4818
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TENNESSEE VALLEY AUTHORITY
Dennis M. McCarthy-
Tennessee Valley Authority
224 Natural Resources Building
Norris, Tennessee 37828
COMM. 615/632-6450
FTS. 856-6430
DEPARTMENT OF ENERGY
Vicki L. Alspaugh
U. S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 60439
Helen Grant
U. S. Department of Energy
1655 Peachtree Street
Atlanta, Georgia 30309
Gabriel Marciante
U. S. Department of Energy
P. 0. Box E
Oak Ridge, Tennessee
Robert Mussler
U. S. Department of Energy
1000 Independence Avenue, S.W.
Washington, D. C. 20545
Lucy R. Querques
U. S. Department of Energy
1000 Independence Avenue, S.W.
Washington, D. C. 20545
Robert H. Strickler
U. S. Department of Energy
1000 Independence Avenue, S.W.
Washington, D. C. 20545
ECONOMIC DEVELOPMENT ADMINISTRATION
312/972-2244
972-2244
404/881-3135
257-3135
615/576-0850
626-0850
252-6947
252-9680
252-4597
John C. Cole
Economic Development Administration
Suite 700
1365 Peachtree Street, N.E.
Atlanta, Georgia 30309
404/881-7667
257-7667
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HOUSING AND URBAN DEVELOPMENT
Regional Office (Atlanta)
Richard L. Bailey
DHUD, Region IV
75 Spring Street, S.W.
Atlanta, Georgia 30303
Gayle F. Burbidge
DHUD, Region IV
75 Spring Street, S.W.
Atlanta, Georgia
Ivar Iverson
DHUD, Region IV
75 Spring Street, S.W.
Atlanta, Georgia
Russell Jacobsen
DHUD, Region IV
75 Spring Street, S.W.
Atlanta, Georgia 30303
John Ogden
DHUD, Region IV
75 Spring Street, S.W.
Atlanta, Georgia 30303
Alabama
Robert E. Lunsford
Alabama Area Office
15 South 20th Street
Birmingham, Alabama
Florida
Buddy E. Arbuckle
Jacksonville Area Office
661 Riverside Avenue
Jacksonville, Florida
Robert Crews
Jacksonville Area Office
661 Riverside Avenue
Jacksonville, Florida 32250
Alett Little
Jacksonville Area Office
Room 1016, 100 W. Capitol Street
Jacksonville, Florida
COMM. 404/221-5151
FTS. 242-05151
404/221-5151
242-5151
404/221-4096
242-4096
404/221-4087
242-4087
404/221-5151
242-5151
205/254-1676
904/791-2610
946-2610
904/791-2610
946-2610
601/960-5242
490-5242
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Georgia
James V. Spann
Atlanta Area Office
7 5 Spring Street
Atlanta, Georgia
Harry Walls
Atlanta Area Office
7 5 Spring Street
Atlanta, Georgia 30303
Kentucky
Behram Shroff
DHUD, Louisville Area Office
P. 0. Box 1044
Louisville, Kentucky 40201
Tennessee
Richard C. Becker
DHUD, Knoxville Area Office
1111 Northshore Drive
Knoxville, Tennessee 37919
Carl J. Saine
DHUD, Nashville Service Office
1 Commerce Place Suite 1600
Nashville, Tennessee
Steve Shields
DHUD, Knoxville Area Office
1111 Northshore Drive
Knoxville, Tennessee 37919
Jeraldene White
DHUD, Memphis Service Office
100 N. Main Street
Memphis, Tennessee
OAK RIDGE NATIONAL LABORATORY
Lorene L. Sigas
Oak Ridge National Laboratory
Box X
Oak Ridge, Tennessee 37830
COMM. 404/221-4037
PTS. 242-4037
404/221-4036
242-4036
502/582-6173
352-6173
615/558-1344
615/251-5111
252-5111
615/558-1345
854-1345
901/521-3367
222-3367
615/574-7266
624-7266
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GENERAL SERVICES ADMINISTRATION
A. Elaine Gilbert
General Services Administration
Public Buildings Service
7 5 Spring Street
Atlanta, Georgia 30303
James L. Smith
General Services Administration
75 Spring Street
Atlanta, Georgia 30303
VETERANS ADMINISTRATION
404/221-3080
243-3080
404/221-3080
243-3080
Jon E. Baer
Veterans Administration
811 Vermont Avenue, N.W.
Washington, D. C. 20420
Willard Sitler
Director, Office of Environmental
810 Vermont Avenue, N.W.
Washington, D. C. 20420
202/389-2463
389-2463
Affairs
202/389-2526
389-2526
U. S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON. D. C.
Thomas R. Sheckells
Deputy Director,
Office of Federal Activities
Washington, D. C. 20460
Kathi Wilson
Office of Federal Activities
Washington, D. C. 20460
202/755-0770
755-0770
202/245-3006
245-3006
COUNCIL ON ENVIRONMENTAL QUALITY
Nancy Nord
722 Jackson Plaxe, N.W.
Washington, D. C. 20006
202/395-5750
395-5750
U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION VII
Robert Fenemore
324 East 11 Street
Kansas City, Missouri
816/374-2921
758-2921
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U. S. ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA
Charles R. Jeter
Regional Administrator
Theodore Bisterfeld
EIS Branch
Robert Cooper
EIS Branch
Clara J. DeLay
EIS Branch
John E. Hagan III
Chief, EIS Branch
Louie P. Heard
Soil Conservationist - IPA to EPA
Robert B. Howard
Chief, EIS Preparation Section
Eric H. Hughes
Ecological Review
Stephanie Lankford
EIS Branch
Allen Lucas
Ecological Review
Ronald J. Mikulak
EIS Branch
404/881-4727
257-4727
404/881-7458
257-7458
404/881-7458
257-7458
404/881-7458
257-7458
404/881-7458
257-7458
404/881-4980
257-4980
404/881-7458
257-7458
404/881-7901
257-7901
404/881-7458
257-7458
404/881-7901
257-7901
404/881-7458
257-7458
Gerald J. Miller
EIS Branch
404/881-7458
257-7458
Sheppard N. Moore
Chief, EIS Review Section
404/881-7458
257-7458
Joe T. McEnerney
EIS Branch
404/881-7458
257-7458
Louis Nagler
Air & Hazardous Materials
404/881-2786
257-2786
Beverly Poolson
Ecological Review
404/881-7901
257-7901
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Bradley Nicolajsen
Ecological Review
Frank Redmond
Public Awareness Branch
Robert Roth
Office of Program Integration
and Operation
Carl R. Sova
Air Programs
Hagan Thonpson
Public Awareness Branch
Oscar J. Webster
EIS Branch
Aurel J. Tolman
EIS Branch
COMM.
FTS.
404/881-
257-
404/881-
257-
404/881-
257-
404/881-
257-
404/881-
257-
404/881-
257-
404/881-
257-
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•7901
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PUBLIC HEALTH SERVICE, CENTER FOR DISEASE CONTROL
Robert L. Kay, Jr.
Environmental Health Servies Division
Atlanta, Georgia 30333 236-6649
FEDERAL EMERGENCY MANAGEMENT AGENCY
Thomas L. Hawkins
Federal Emergency Management Agency
1375 Peachtree Street, Suite 778
Atlanta, Georgia 30309
404/881-2391
257-2391
Cheryl Stovall
Federal Emergency Management Agency
Suite 778, 1357 Peachtree Street
Atlanta, Georgia 30309
404/881-2391
257-2391
NATIONAL MARINE FISHERIES SERVICE
Mark Thompson
National Marine Fisheries Service
3500 Delwood Beach Road 904/234-5061
Panama City, Florida
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CONGRESSMAN LEVITAS'S OFFICE
Susan Rowell
141 East Trinity Place 404/377-1717
Decatur, Georgia
Mike Sloan
141 East Trinity Place 404/377-1717
Decatur, Georgia
STATE GOVERNMENTS
Alabama
Timothy S. Hamilton
East Alabama Regional
and Development Commission
Box 2186 205/237-6741
Anniston, Alabama 229-6942
Florida
Lynn Griffin
Florida Department of
Environmental Regulation
2600 Blair Stone Road 904/488-0130
Tallahassee, Florida 32301
Elizabeth Hodecker
Florida Office of the Governor
The Capitol 904/488-5551
Talahassee, Florida 32301
Walter 0. Kolb
Florida Office of the Governor
The Capitol 904/488-5551
Tallahassee, Florida 32301
Georgia
Chuck Badger
Georgia State Clearing House
270 Washington Street 404/656 -3855
Atlanta, Georgia 30334
G. Robert Kerr
The Georgia Conservancy
3110 Maple Drive, Suite 407 404/262-1967
Atlanta, Georgia
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Jim Morrison
Georgia Wildlife Federation
4019 Woburn Drive
Tucker, Georgia 30084
COMM. 404/934-1955
Susan Shepherd Prosser
Mcintosh Trail APDC
P. 0. Box 241
404/227-3096
Griffin, Georgia 30224
Jeff Sewell
Georgia Conservancy
Marietta, Georgia
Naomie 0. Smith
Georgia Environmental Protection Division
Trinity, Washington Building
Room 825
Atlanta, Georgia 656-4708
Sam Williams
Georgia State Clearinghouse
270 Washingtron Street 404/656-3855
Atlanta, Georgia 30334
Harvey G. Young
Georgia Department of Natural Resources
270 Washington Street
Atlanta, Georgia 30334 404/656-4810
Kentucky
William W. Ahrens
Kentucky Regional Planning and
Development Agency
914 E. Broadway 502/589-4406
Louisville, Kentucky
Rose Marie Carr Clements
Department of Natural Resources
and Environmental Protection
Capital Plaza Tower 502/564-7320
Frankfort, Kentucky
Mississippi
Roger A. Jennings
Mississippi Bureau of Pollution Control
P. 0. Box 10385
Jackson, Mississippi 39209 601/961-5171
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South Carolina
N. S. Thompson
Lowcounty Council of Governments
P. 0. Box 98 COMM. 803/726-5536
Yemassee, South Carolina 29945
Tennessee
Hale Booth
Chattanooga Area Council of
Governments
735 Broad Street 615/266-5781
Chattanooga, Tennessee 37402
GEORGIA INSTITUTE OF TECHNOLOGY
College of Architecture,
Mahmoud S. Al-Zobi
David J. Brown
Patricia Brown
Stanley E. Bufford
Andrea Clute
Thomas L. Coakley
Amelia L. Conrad
Andrea Gernazian
Daniel J. Goerke
Richard E. Greene
City Planning Program
James A. Grissett III
Mark S. Hardgrove
Paul M. Jean
Jane Karowski
James S. Macleod
Azuka Ngoddy
Belinda M. Pedroso
Hervy Pereira
Douglas H. Stauffer
Sharon Summers
NONGOVERNMENTAL AGENCIES AND PRIVATE INDIVIDUALS
David A. Adams
Department of Forestry
N. C. State
Raleigh, North Carolina 27607
Dottie Aiken
EDAW Associates
2000 Clearview Avenue
Atlanta, Georgia 30340
Ralph L. Bent
P. 0. Box 30058
Shreveport, Louisiana 71130
Gregory Bourne
Claude Terry and Associates
1955 Cliff Valley Way
Atlanta, Georgia 30332
919/737-2891
404/457-0140
318/459-5132
404/329-0430
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Dr. Clifford R. Bragdon
Georgia Institute
of Technology
Atlanta, Georgia 30332
Steve Buckley
Bechtel Energy Corporation
889 Ridge Lake Bulavard
Menphis, Tennessee 38138
COMM. 404/894-3380
901/685-3460
Alfred G. Bouoni
Battelle Columbus Laboratories
505 King Avenue
Columbus, Ohio 43201 PTS.
Gary Christopher
Engineering-Science, Inc.
57 Executive Park South
Atlanta, Georgia
Herschel C. Conner, Jr.
H. W. Cochner, Inc.
9720 Executive Center Drive North
Saint Petersburg, Florida
Ralph E. Cooper
Battelle Columbus Laboratories
505 Ing Avenue
Columbus, Ohio 43201
614/424-6497
976-6497
404/325-0770
813/576-2535
614/424-6497
976-6497
H. Lee Davis
Conservation Consultants, Inc.
P. 0. Box 35
Palmetto, Florida
813/722-6668
Dr. Norbert Dee
Law Engineering
2749 Delk Road
Marietta, Georgia 30067
Jan E. Dillard
WAPORA, Inc.
5980 Unity Drive
Norcross, Gerogia 30071
404/952-9005
404/447-4433
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Jack D. Doolittle
Environmental Science and Engineering, Inc.
P. 0. Box ESE COMM. 904/372-3318
Gainesville, Florida 32602
Tim Doyle
Dames & Moore
455 E. Paces Ferry Road
Atlanta, Georgia 30363
Michael J. Dupree
W. R. Grace and Company
P. 0. Box 27147
Michael Farr
Envirosphere
145 Technology Park
Norcross, Georgia
Edward L. Findley
976 Viscount Court
Avondale, Georgia 30002
Louise B. Franklin
Claude Terry and Associates, Inc.
1955 Cliff Valley Way, Suite 220 404/329-0430
Atlanta, Georgia 30029
H. Paul Friesema
Department of Political Science
Northwestern University
Evanston, Illinois 60201
R. L. Dick Gensel
P. 0. Box 649 404/429-3404
Marietta, Georgia
Frank Groznik
CH2M Hill
P. 0. Box 1647 904/377-2442
Gainesville, Florida 32602
Jerome J. Guidry
Post, Buckley, Schuh & Jernigan, Inc.
4720 North Orange Blossom Trail 305/295-4131
Orlando, Florida 32801
404/262-2915
901/522-2170
404/449-5800
404/296-0430
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Richard Hamann
Center for Governmental Responsibility
University of Florida COMM. 904/392-2237
Gainsville, Florida 32611
William E. Harris
Stottler Stagg and Associates
6650 Powers Ferry Road 404/955-1680
Atlanta, Georgia 30339
James Harrison
Water Quality Specialist
Toxics Waterwatch
730 Peachtree Street, N.E. 404/873-2016
Atlanta, Georgia 30308
R. Michael Hartman
Envirosphere Conpany
145 Technology Park 404/449-6639
Norcross, Georgia 30338
Paul T. Henslee
Gulf South Research Institute
P. 0. Box 14787 504/766-3300
Baton Rouge, Louisiana 70898
Jerry Hitzemann
WAPORA, Inc.
5980 Unity Drive 404/447-4433
Norcross, Georgia 30071
Barbara Hogan
Soil Systems, Inc.
525 Webb Industrial Drive 404/424-6200
Marietta, Georgia 30062
Robert J. Hunter
Claude Terry and Associates, Inc.
1955 Cliff Valley Way 404/329-0430
Atlanta, Georgia 30029
Steve Kangisser
Envirosphere
145 Technology Park 404/449-5800
Norcross, Georgia
E. J. Kazmierczak
Stottler Stagg and Associates
6650 Powers Ferry Road 404/955-1680
Atlanta, Georgia 30339
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C. M. Kelly, Ph.D.
International Coal Refining Company
P. 0. Box 2752 COMM.
Allentown, Pennsylvania 18001
Edwin Kramer
1383 Spring Street., N.W.
Atlanta, Georgia 30367
Paul E. Kueser
Energy Impact Associates
2400 Ardmore Blvd.
Forest Hills, Pennsylvania 15221
Lloyd G. Laudenschlager
P. O. Box 6567
Fort Worth, Texas 76115
215/481-1154
404/876-3601
415/351-5800
Susan Levin
Water Quality Specialist
Toxics Waterwatch
7 30 Peachtree Street, N.E.
Atlanta, Georgia 30308
David Levy
Toxics Waterwatch
7 30 Peachtree Street, N.W.
Atlanta, Georgia 30308
Jim Little
Dames and Moore
Atlanta, Georgia
B. Hamilton McDonald
ESE, Inc.
2 200 Northlake Parkway
Tucker, Georgia 30084
404/873-2016
404/8732016
404/262-2915
404/482-1528
Ronald McGregor
Estech, Inc.
410 Cortez Road
Bradenton, Florida
33507
813/758-8688
Ronald McNeill
WAPORA, Inc.
5980 F Unity Drive
C. G. Meier
Farmland Industries
P.O. Box 960
Bartow, Florida 33830
404/447-4433
813/533-1141
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Dr. John Charles Nemeth
CH2M Hill
401 W. Peachtree Street, N.W. 404/588-1990
Atlanta, Georgia 30308
Mike Opalinski
Seminole Electric Cooperative, Inc.
P. O. Box 17100 813/933-7406
Tampa, Florida 33682
Charles A. Perry
Attorney at Law
Elarbee, Clark and Paul
229 Peachtree Street, N.W. 404/659-6700
Atlanta, Georgia 30043
jack H. Pyburn
EDAW Associates
2000 Clearview Avenue, N.E. 404/457-0140
Atlanta, Georgia 30340
H. Clayton Robertson
Conservation Consultants, Inc.
P. 0. Box 35 813/722-6668
Palmetto, Florida
R. R. Ross
Seminole Electric Cooperative, Inc.
P. 0. Box 17100
Tampa, Florida 33682
Thomas N. Sargent
Engineering-Science
51 Executive Park S # 590
Atlanta, Georgia 30329
William A. Schimming
CF Industries, Inc.
P. 0. Box 1480
Bartow, Florida 33830
813/933-7406
404/325-0770
813/533-3181
Lowell A. Schuknecht
Envirosphere Company
145 Technology Park
Norcross, Georgia 30092
404/449-5800
Charles Seabrook
The Atlanta Journal
404/526-5342
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Robert Stephens
WAPORA, Inc.
5890 Unity Drive
Norcross, Georgia 30071
M. E. Strachn
615 Holly Ridge Drive
Vicksburg, Mississippi 39180
COMM. 404/447-4433
601/634-5429
Rob Sumner
Georgia Business and Industry Association
181 Washington Street, S.W.
Atlanta, Georgia 30303
Claude Terry
Claude Terry and Associates, Inc.
1955 Cliff Valley Way
Atlanta, Georgia 30029
P. Don Weaver, Jr.
Resource Planning, Inc
P. 0. Box 82528
Tampa, Florida 33682
Brian Winchester
CH2M Hill, Inc.
P. 0. Box 1647
Gainesville, Florida 32601
404/659-4444
404/329-0430
813/949-2631
904/377-2442
Charles P. Younce
Jack Elam - Cone Mills Corporation
1201 Maple Street 919/379-6449
Greensboro, North Carolina 27405
Don L. Young
The Environmental Licensing
P. 0. Box 12269
Pensacola, Florida 32581
Group, Inc.
904/432-3411
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DATE DUE
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