April 2008
EPA Publication 315-K-08-001
Environmental Review
Guide for Special
Appropriation Grants
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Environmental Review Guide for Special Appropriation Grants April 2008
Environmental Review Guide for Special
Appropriation Grants
Prepared by:
U.S. Environmental Protection Agency
Office of Federal Activities
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
EPA Publication No: 315-K-08-001
Final EPA Publication No. 315-K-08-001
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Environmental Review Guide for Special Appropriation Grants April 2008
Disclaimer
The U.S. Environmental Protection Agency's (EPA's) Office of Federal Activities
prepared this guidance document with the technical assistance of Booz Allen
Hamilton, in partial fulfillment of EPA Contract 68-W-03-030, Task Order 007.
This guidance document is not a regulation and does not change or substitute
for any legal requirements, as indicated by the use of non-mandatory
language, such as may, should, and can. It provides non-binding policy and
procedural guidance; therefore, it is not intended to create legal rights, impose
legally binding requirements on EPA or the public when applied in particular
situations, or contravene any other legal requirements that may apply to
particular Agency determinations or actions. Specifically, this guidance
document provides recommended procedures and approaches to assist grant
applicants in preparing environmental information related to proposed
construction projects that are subject to the National Environmental Policy Act
(NEPA). EPA-funded construction projects subject to NEPA are generally those
projects that are authorized by Congress and for which the grant authority is the
Agency's annual appropriations acts; however, the procedures and
approaches recommended herein may also be useful to grant applicants
whose projects are funded under the authority of other EPA statutes.
Final \ EPA Publication No. 315-K-08-001
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Environmental Review Guide for Special Appropriation Grants April 2008
Overview
This guidance document, "Environmental Review Guide for Special
Appropriation Grants," presents an overview to EPA's environmental review
process and the levels of analysis associated with that review. This handbook
and the related appendices are designed for grant applicants who are
applying for project funds that were authorized by Congress and for which the
grant authority is the Agency's annual appropriations acts. It contains
background information, guidelines, checklists, other tools, and references that
will assist grant applicants in understanding requirements under NEPA. This
handbook should help applicants understand the environmental review process
required under NEPA, as well as how to assist EPA during this review. It is EPA's
hope that this handbook will help grant applicants and the Agency move
projects through the grant and environmental review process in a timely and
efficient manner.
Final ii EPA Publication No. 315-K-08-001
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Preparers and Contributors
This document was prepared by the EPA's Office of Federal Activities with the
technical assistance of Booz Allen Hamilton, in partial fulfillment of EPA Contract
68-W-03-030, Task Order 007.
Katherine Biggs
U.S. Environmental Protection Agency (EPA), Office of Federal Activities
Jordan Dorfman
U.S. EPA, Office of Wastewater Management
Robert Hargrove
U.S. EPA, Office of Federal Activities
Matt Harrington
U.S. EPA, Office of Federal Activities
Marilyn Kuray
U.S. EPA, Office of General Counsel
Jaime Loichinger
U.S. EPA, Office of Federal Activities
Francis Roth
U.S. EPA, Office of Grants and Debarment
William Lawler
U.S. EPA, Region 2
James Adcock,
U.S. EPA, Region 4
Ben Chen,
U.S. EPA, Region 4
Robert Freeman,
U.S. EPA, Region 4
Man/ann Gerber,
U.S. EPA, Region 4
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Environmental Review Guide for Special Appropriation Grants April 2008
Hilda Hatzell,
U.S. EPA, Region 4
John McConney,
U.S. EPA, Region 4
Dorothy Rayfield
U.S. EPA, Region 4
Joe Jung
U.S. EPA, Region 9
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Environmental Review Guide for Special Appropriation Grants April 2008
Table of Contents
Disclaimer i
Overview ii
Preparers and Contributors iii
Table of Contents v
Section 1.0 Introduction The U.S. Environmental Protection Agency (EPA) and the
Environmental Review Process 1
1.1 Who should use this Handbook? 1
1.2 Does NEPA apply to a SAAP grant? 2
1.3 What is a NEPA environmental review? 2
1.4 What level of review is needed for a SAAP? 3
1.5 What is the grant applicant's role in the NEPA environmental review process? 8
1.6 What is EPA's role in the NEPA environmental review process? 9
1.7 How does the NEPA environmental review process fit into the grant process? 10
1.8 Who should be contacted for questions about a SAAP? 11
1.9 How does the grant applicant coordinate a project with other state, regional,
local, and tribal governments? 11
1.9.1 Coordination with a State, County, City, or Other Local Community 11
1.9.2 Coordination with Alaska Native and Native American Tribal
Governments 11
1.10 How to get started 12
1.11 Toolbox for Section 1 12
Section 2.0 Categorical Exclusions and Extraordinary Circumstances 15
2.1 What is a categorical exclusion? 15
2.2 Is the project eligible for a CATEX? 15
2.3 When would a project not qualify for a CATEX and what are extraordinary
circumstances? 16
2.4 Can EPA use a CATEX that another federal agency has provided for the same
project? 17
2.5 What is the grant applicant's role in preparing a CATEX? 18
2.5.1 What is included in cross-cutter coordination and consultation? 18
2.6 What is EPA's role in the CATEX process? 19
2.7 Toolbox for Section 2 21
Section 3.0 Environmental Information Document 23
3.1 What is an Environmental Information Document? 23
3.2 What should an EID contain? 23
3.2.1 Purpose and Need for the Project 23
3.2.2 Proposed Project and Funding Status 23
3.2.3 Existing Environment 24
3.2.4 Alternatives Analysis 25
3.2.5 Environmental Impacts and Mitigation 26
3.2.6 Interagency Coordination and Consultation Activities 27
3.2.7 Public Participation 28
3.2.8 List of Preparers 28
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3.2.9 List of References 29
3.3 How are other state and federal agency reviews used? 29
3.4 What are some helpful hints for efficient BID preparation? 29
3.5 What is EPA's role in the preparation of the BID? 31
3.6 Toolbox for Section 3 31
Section 4.0 Environmental Assessment 37
4.1 What is an environmental assessment? 37
4.2 Who is responsible for preparing an EA? 37
4.3 Overview of an EA 37
4.4 What is the framework for a FONSI? 38
4.5 How does the public participate in the EA process? 39
Section 5.0 Environmental Impact Statement 41
5.1 What is the definition of an Environmental Impact Statement (EIS)? 41
5.2 Who is responsible for preparing an EIS? 41
5.3 When is an EIS prepared? 41
5.4 Overview of an EIS 43
5.4.1 What is a Record of Decision (ROD)? 44
5.5 How does the public participate in the EIS Process? 45
Index 47
Acronyms and Abbreviations 48
Glossary of Terms 49
Reference Materials 53
List of Appendices 55
Appendix A 57
Appendix B 123
Appendix C 137
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Figures
Figure 1-1 a. NEPA Environmental Review ProcessCATEX 5
Figure 1-lb. NEPA Environmental Review ProcessEID and EA 6
Figure 1-lc. NEPA Environmental Review ProcessEIS 7
Figure 1-2 EPA Regional Map 13
Figure 2-1 NEPA Review Process for Categorical Exclusions 20
Figure 3-1 Integration of EID Preparation and NEPA Review with Grant
Project Planning 30
Figure 4-1 EA Overview 38
Figure 4-2 FONSI Overview 38
Figure 4-3 EID Preparation NEPA Review/Grant Project Planning Integration
(Environmental Assessments) 40
Figure 5-1 Overview of an EIS 44
Figure 5-2 ROD Overview 45
Figure 5-3 EIS Preparation NEPA Review/Grant Project Planning Integration
(Environmental Impact Statement) 46
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Appendices
APPENDIX A: The National Environmental Policy Act (NEPA); the Council
on Environmental Quality Regulations for Implementing the
Procedural Provisions of the National Environmental Policy
Act (40 C.F.R. Parts 1500-1508); and the Council on
Environmental Quality Questions and Answers on the NEPA
regulations
APPENDIX B: Environmental Protection Agency (EPA) Procedures for
Implementing the National Environmental Policy Act and
Assessing the Environmental Effects Abroad of EPA Actions
(40 C.F.R. Part 6)
APPENDIX C: Cross-Cutter Coordination and Consultation Process
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Section 1.0 Introduction The U.S. Environmental Protection Agency (EPA) and
the Environmental Review Process
1.1 Who should use this Handbook?
This handbook is designed for the use of grant applicants who are applying for
grants for projects that are authorized by Congress and for which the grant
authority is the Agency's annual appropriations acts. Such projects are subject
to the National Environmental Policy Act of 1969 (NEPA). EPA's annual
appropriations acts have included funding for a number of such construction-
related projects identified as line items or earmarks. Line items in the annual
appropriations acts generally specify the recipient name, dollar amount, and
project or type of project to be funded. Congress usually provides the line items
to help fund infrastructure construction projects
related to drinking water, wastewater, and storm
water. EPA refers to each of these projects as a
"Special Appropriations Act Project" (SAAP). For
the purposes of this handbook, these grant-
funded projects are referred to as "projects."
"The National Environmental Policy
Act (NEPA) is our basic national
charter for protection of the
environment. It establishes policy, sets
goals, and provides means for
carrying out the policy" (40 C.F.R.
§1500.1 (a)).
The purpose of this handbook is to provide a tool ^^^^^^^_^^^^^^^_
to assist grant applicants in providing
environmental information on proposed projects to EPA. EPA uses this
information to fulfill its responsibilities under NEPA, the Council on Environmental
Quality regulations, and EPA regulations implementing NEPA (see Appendices A
and B).
When using this handbook, keep in mind that it is a tool to assist the grant
applicant and does not establish EPA policy or prescribe regulatory
requirements. This handbook contains background information, specific
guidelines, checklists, other tools, and references. This information is intended to
assist grant applicants in understanding the environmental review process for
projects.
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1.2 Does NEPA Apply to a SAAP Grant?
Grants for SAAP infrastructure construction
projects are subject to NEPA. Two sets of
regulations govern EPA's implementation of
NEPA: (1) the Council on Environmental
Quality (CEQ) regulations found at Title 40
Code of Federal Regulations Parts 1500-
1508 (40C.F.R. Parts 1500-1508) (see
Appendix A), and (2) EPA's regulations
implementing NEPA at 40 C.F.R. Part 6 (see
Appendix B). Applicants can access the
CEQ and EPA regulations on CEQ's
NEPAnetat:
Section 102(2)(C) of NEPA directs that
"to the fullest extent possible, all agencies
of the Federal Government shall...
include in every recommendation or
report on proposals for... major Federal
actions significantly affecting the quality
of the human environment, a detailed
statement by the responsible official on
the environmental impact of the
proposed action,... alternatives to the
proposed action,... and any irreversible
and irretrievable commitments of
resources which would be involved in the
proposed action" (42 U.S.C. §4332(2)(Q).
http://ceq.eh.doe.gov/nepa/nepanet.htm.
EPA's NEPA implementing regulations (40
C.F.R. Part 6) also can be accessed at:
http://www.access.apo.gov/nara/cfr/cfr-
table-search.html#page1
It is important to note that the requirement
for an environmental review under NEPA <^^^^^^^^^^^^^^^^^^m
generally does not apply to grants solely for
planning activities, such as infrastructure assessments, watershed plans, and
wastewater capital improvement plans. Applicants should check with their EPA
point of contact to determine if NEPA applies to a particular grant.
CEQ regulations require agencies to
develop their own NEPA procedures to
make the NEPA process more useful to
decision makers and the public; to
reduce paperwork and the accumulation
of extraneous background data; and to
emphasize real environmental issues and
alternatives (40 C.F.R. § 1500.2(b)).
1.3 What is a NEPA environmental review?
EPA's review and assessment of environmental information relating to the
project, including any applicable public review and the determination of a
categorical exclusion (CATEX), or the development of an environmental
assessment/finding of no significant impact (EA/FONSI), or an environmental
impact statement/record of decision (EIS/ROD) is called the NEPA
environmental review. If a project is not eligible for a CATEX, NEPA requires EPA
to prepare either an EA or EIS on the proposed project.
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In order for EPA to prepare either an EA or
EIS, it needs environmental information
about the proposed project. The grant
applicant provides EPA with this project
information to help assess the potential
environmental effects of the proposed
project and alternatives to the proposed
project. Typically, EPA refers to this
documentation as the Environmental
Information Document (EID). The EID should
contain adequate information for EPA to
conduct an environmental review.
"An EID means a written analysis prepared by
an applicant that provides sufficient
information for the Responsible Official to
undertake an environmental review..." (40
C.F.R. § 6.102 (b)(4)). The EID provides basic
project information, including a description
of the proposed project, and evaluates the
environmental impacts of and alternatives to
the proposed project. The scope and level of
detail for the EID should be commensurate
with the magnitude and significance of the
proposed project. Section 3.0 describes the
EID in more detail.
NEPA and its implementing regulations provide the framework that is used to
evaluate a proposed action, consider all of the reasonable alternatives and no
action, and assess the potential environmental effects of the proposed action and
alternatives. EPA decision makers responsible for providing SAAP grant funds use
this information in making the grant decision.
NEPA also requires integrating analyses and consultations undertaken pursuant to
other environmental laws and executive orders to the maximum extent possible
with the NEPA environmental review process. These environmental laws and
Executive Orders are commonly referred to as "cross-cutters." To comply with
cross-cutting federal laws and Executive Orders, it is often necessary to provide
the cross-cutter agency the opportunity to review and provide input (or
concurrence) through consultation and coordination on the proposed project.
Beginning this process early in the project may help avoid delays. Cross-cutters are
addressed in greater detail in Appendix C. Additionally, grant applicants should
be aware that other state, local, or tribal government reviews may be needed for
a project under Executive Order 12372, Intergovernmental Review of Federal
Programs. Grant applicants should seek guidance from EPA when determining all
of the cross-cutters and coordination applicable to a project.
It is also important to note that the public, other interested parties, and
stakeholders are given an opportunity to provide input to the decision-making
process through review and comment on an EA/FONSI and EIS/ROD. The level of
public input is determined by the level of environmental review conducted for a
specific project. Sections 2.0 through 5.0 address the public involvement process
in more detail.
1.4 What level of review is needed for a SAAP?
Every proposed project seeking SAAP grant funding is evaluated for its potential
environmental impacts. In recognizing that there are varying degrees of
environmental impacts, from minor to significant and beneficial to adverse, the
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NEPA regulations provide for varying levels of environmental review depending
on the potential significance of predicted environmental impacts.
There are three basic levels of environmental analysis:
Categorical Exclusion. A CATEX is a category of
actions that do not individually or cumulatively have a
significant effect on the human environment and are
identified in the EPA NEPA implementing regulations.
These actions do not require an EID, EA, or EIS. Most
water or wastewater infrastructure projects that
qualify for a CATEX are rehabilitative activities or
activities adjacent to or occurring at existing facilities.
Section 2.0 describes the CATEX process in greater
detail.
"Categorical exclusion means a
category of actions which do not
individually or cumulatively have a
significant effect on the human
environment and which have been
found to have no such effect in
procedures adopted by a federal
agency in implementation of these
regulations and for which, therefore,
neither an environmental
assessment or an environmental
impact statement is required" (40
C.F.R. § 1508.4).
Environmental Assessment. An EA is an
analysis prepared by EPA or the grant
applicant to determine if the proposed
action will have significant impacts. An EA
may result in a FONSI or a need to prepare
an EIS. The EID prepared by the grant
applicant forms the basis for the EA.
Section 4.0 describes the EA process in
greater detail.
"An environmental assessment is a concise
public document for which a federal agency is
responsible and serves to briefly provide
sufficient evidence and analysis for determining
whether to prepare an environmental impact
statement or a finding of no significant impact"
(40 C.F.R. § 1508.9).
Environmental Impact Statement. An EIS is prepared when EPA determines that
the proposed project has the potential to have significant
environmental impacts on the quality of the human
environment. Scoping is the process whereby the agency
determines the range of issues to be analyzed in detail in an
EIS. The EIS provides a detailed analysis of the potential
environmental impacts of the proposed action and its
alternatives and evaluates mitigation measures to avoid ^^^^^^m
adverse impacts. The EIS process is discussed in greater detail in Section 5.0.
An Environmental Impact
Statement "means a
detailed written statement
as required by section
102(2)(C) of [NEPA]"(40
C.F.R. § 1508.11).
The NEPA environmental review process for all levels of environmental review is
depicted in Figures 1-1 a through 1-lc. More details on the review processes and
related documents are provided in Sections 2.0 through 5.0 of the handbook.
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Figure 1-la. NEPA Environmental Review ProcessCATEX
Grant applicant defines project
EPA makes preliminary determination
that project may be eligible for a
CATEX determination
Grant applicant requests a CATEX
determination from EPA and provides
supporting information. The CATEX
request should indicate how the
proposed action meets EPA's definition
of a CATEX and that it does not
involve any extraordinary circumstances
EPA may request additional
environmental information from
grant applicant to support
a CATEX determination
v
EPA
reviews the
information and
\ determines whether
the project meets
EPA's CATEX
criteria
Proposed action does
not meet EPA's criteria;
May need to prepare
EID or Draft EA based
on discussions between
grant applicant and EPA
(See NEPA
Environmental Review
ProcessEID and EA)
EPA documents
the CATEX
determination
EPA proceeds with grant award
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Figure l-lb. NEPA Environmental Review ProcessEID and EA
Grant applicant defines project
EPA determines the
proposed project is not
eligible for a CATEX
EPA and grant
applicant discuss scope of
EID or Draft EA
Grant applicant
prepares and submits EID
or Draft EA to EPA
EPA reviews EID or Draft EA
EPA prepares EA or
uses Draft EA prepared
by grant applicant
EPA finalizes
the EA and makes
the preliminary
FONSI available to
public for 30-day
comment period
EPA issues
final signed
FONSI which
addresses public
comments
received; if
there are
no public
comments
received, the
preliminary
FONSI may
be considered
a final FONSI
EIS should be prepared
(See NEPA Environmental Review
ProcessEIS)
EPA proceeds
with grant award
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Figure i-lc. NEPA Environmental Review ProcessEIS
Grant applicant defines project
Are impacts
significant?
EPA determines EIS must be prepared
EPA may request grant applicant to
provide additional environmental information
and/or enter into third-party agreement to
hire contractor to prepare EIS
L
EPA issues Notice of Intent (NOI) to
prepare EIS and conducts scoping
EPA may hold scoping meetings with
agencies and public; grant applicant may be
asked to assist with scoping meetings
EPA issues Draft EIS for 45-day comment period
and may hold a public hearing; grant applicant
may be asked to assist with public hearing
EPA issues Final EIS for 30-day comment
period; Final EIS responds to comments on
Draft EIS. Grant applicant may be asked to
assist in responding to comments
EPA issues
ROD which
may address
comments
received on
Final EIS
EPA proceeds
with
grant award
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1.5 What is the grant applicant's role in the NEPA environmental review
process?
The role of the grant applicant in the NEPA environmental review process is to
provide information to EPA about the project and its potential environmental
effects. As a first step, EPA and the grant applicant should discuss the scope of
information to be provided to EPA. This information may include:
Defining the project description and potential environmental impacts of
the proposed project
Describing the project purpose and need (such as addressing water
quality and quantity problems, public health concerns, inadequate
systems, more stringent effluent limits)
Describing the project details (such as planning area description; planning
period; description of construction phases; owner and operator of the
facilities; location of facilities, including a map)
Describing design parameters (for example, major unit processes, flow
diagrams, pipe lengths, sizes and locations, design criteria)
Describing project costs, including funding from EPA and all other sources.
Categorical Exclusion. The grant applicant should review EPA's list of actions
that may be categorically excluded at 40 C.F.R. § 6.204 to determine if the
project might fit within an established CATEX. A grant applicant who concludes
that the project may qualify for a CATEX may request a CATEX determination
from EPA; or EPA may determine that a proposed project may be eligible for a
CATEX during initial discussions with the grant applicant about the proposed
project. If EPA determines the project does not qualify for a CATEX, the
applicant should provide EPA with more detailed information on the proposed
project in the form of an EID. In addition, cross-cutter agency review
documentation (details in Appendix C) may need to be provided for CATEX
determinations.
Environmental Information Document. If EPA determines that the project does
not qualify for a CATEX, EPA will likely ask the grant applicant to submit an EID to
EPA to provide information about the project and its potential environmental
effects. The EID provides basic project information including a detailed
description of the proposed project and evaluates the environmental impacts
and alternatives to the proposed project. The scope and level of detail of the
EID should be commensurate with the magnitude and significance of the
proposed project. Section 3.0 provides details about the purpose, content, and
other pertinent information related to the EID.
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It is recommended that the grant applicant consult the EPA point of contact to
obtain information on the processes to follow when preparing an BID and the
information that should be included. If the grant applicant holds one or more
public meetings as part of preparing the BID, a description of the process and
any additional documentation should be included in the BID. Please be aware
that EPA may request additional information from the grant applicant if
insufficient information has been provided for EPA to conduct the NEPA review.
This lack of information may result in process delays.
Environmental Assessment. If EPA is preparing the EA, the grant applicant's role
in the EA process is to provide sufficient information in the EID submitted to EPA.
In some cases, the grant applicant may submit a draft EA and supporting
documents in lieu of an EID. EPA may contact the grant applicant during the EA
preparation process to request additional information on the project or its
potential impacts. If the EA results in a FONSI, the grant applicant may also be
asked to assist EPA in conducting any public review process. The grant
applicant should consult with the EPA point of contact for the exact processes
to follow. More details about the EA process are provided in Section 4.0.
Environmental Impact Statement. If the grant applicant's proposed project
requires an EIS, EPA has the primary responsibility for preparing the document.
EPA may enter into a third-party agreement with the applicant to hire a
consulting firm to prepare the EIS. As the project's proponent, the grant
applicant may be asked to assist EPA by providing project information, assisting
with public meetings or hearings, helping to respond to comments that require
project changes, or in other ways. After the EIS is complete, EPA will make a
decision on the action it will take and formalize it in a ROD. For more information
about the EIS/ROD process, see Section 5.0.
1.6 What is EPA's role in the NEPA environmental review process?
EPA is responsible for the NEPA review. In carrying out its responsibilities, EPA does
the following:
Reviews the information submitted by the grant applicant
Determines the adequacy of the information submitted for making a
decision on the appropriate level of environmental review under NEPA
Prepares the appropriate environmental review document (CATEX
determination, EA, or EIS) or reviews and adopts environmental review
documents (Draft EA) prepared by the grantee or a third-party contractor
and ensures its accuracy
Issues a preliminary FONSI or draft/final EIS and takes public comment on
the preliminary FONSI or draft/final EIS
Completes the NEPA process through preparation of the appropriate
decision-making document (discussed below).
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EPA may prepare the following NEPA decision documents:
CATEX Documentation
FONSIforan EA,
RODforanEIS.
1.7 How does the NEPA environmental review process fit into the grant
process?
Federal funding of the design and construction of a project funded in whole or
in part under an EPA appropriations act is subject to NEPA. Under NEPA, EPA
must evaluate the environmental impacts of its action and all reasonable
alternatives (including the no-action alternative), before taking the action
(grant award). EPA may award a grant for planning and preliminary design and
later amend it to include final design and construction once the NEPA
environmental review process has been completed.
Although the purpose of this handbook is to explain the NEPA process as it
relates to SAAP grant applicants, it may be helpful to understand how the NEPA
environmental review relates to the grant award process. The SAAP grant award
process for design and construction varies slightly among EPA regional offices,
but generally consists of the following:
EPA's Appropriations Act and Special Appropriations Grant Guidelines. Once
the EPA appropriations bill is signed into law, the Office of Water in EPA
Headquarters in Washington, D.C. begins developing national guidelines for
administering the SAAP grants. Upon completion, the guidelines are forwarded
to the EPA regional and other headquarters offices. The guidelines assist the
regional and headquarters offices in administering the grants for that fiscal year.
Pre-Application Planning. During this phase, EPA and the grant recipient may
discuss submission of the grant application and the scope of the environmental
review information needed. These discussions may also include the project
scope, environmental review, environmental benefits and results, grant
workplan, cost eligibility of project components, engineering data, and other
items of importance for submitting a grant application.
Environmental Review. During the environmental review, the applicant provides
information to EPA to support a request for a CATEX determination, submits an
EID or Draft EA to EPA, or provides information for preparation of an EIS. EPA
reviews the CATEX request, the EID, Draft EA, or EIS and prepares or finalizes the
appropriate NEPA document.
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Grant Application Process. Discussions between the EPA point of contact and
the potential grantee continue throughout the application process. The grant
applicant prepares the application and submits it to EPA. EPA reviews the
application for completeness, undertakes the appropriate NEPA review, and
awards the grant, if appropriate. Once the grantee fulfills the conditions of the
grant, it is closed out.
1.8 Who should be contacted for questions about a SAAP?
The grant applicant should initially contact the EPA point of contact in the area
where the SAAP is located. A list of initial contacts for each Region and a map
of the Regions are included in the "Toolbox" at the end of this section.
1.9 How does the grant applicant coordinate a project with other state,
regional, local, and tribal governments?
As part of the environmental review process, grant applicants may also need to
coordinate with other agencies and governments for issues that apply to their
project. The following subsections provide examples of the type of information
applicants may need to gather from outside agencies to provide EPA adequate
information to support the environmental review process.
1.9.1 Coordination with a State, County, City, or Other Local Community
Grant applicants may need to contact the relevant state, county, city, or
community office for information on population size of the project area. The
project area is often deemed to be the "planning area." Depending on project
size, the planning area may include the entire community (local town, city, or
county) that will be affected by the proposed project, or it may include only the
neighborhood in which the project is to be located. Applicants should
document the information they gather, including who was contacted, when the
contact was made, and what information was provided. A simple way to
document this effort is to provide EPA with a copy of the initial information
request submitted to the office along with the response that was received. A
summary of the correspondence may also be used.
1.9.2 Coordination with Alaska Native and Native American Tribal Governments
Tribal governments, including Alaskan Native villages, are unique entities
requiring specific coordination independent of other agency coordination. EPA
maintains a list of tribal governments specific to the project area. If there is a
need to consult with tribal governments, EPA will coordinate meetings between
the necessary parties to discuss the proposed project.
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1.10 How to get started
The grant applicant's first step should be to clearly define the scope of the
project. This will include such details as the project needs, project components
(piping, pump stations, wells, water towers, and treatment plant components),
size and length of components, location of all project components, project
costs, source of funds, and so forth. Section 1.5 provides a list of minimum
information that should be included.
The grant applicant's next step is to contact EPA with the project description
and to discuss any applicable intergovernmental review process. The applicant
will also want to discuss their role in the cross-cutter review process. Although the
cross-cutter review process is the responsibility of EPA, the grant applicant may
choose to initiate the cross-cutter review to expedite the environmental review
process. A cross-cutter review is a requirement for every project, including those
that qualify for a CATEX. Appendix C provides details on the cross-cutter
coordination and consultation process.
Open lines of communication between grant applicants and EPA are beneficial
for maintaining the project schedule and environmental review timeline.
Furthermore, early planning and open lines of communication should produce a
more efficient planning process and result in better decisions for the project.
1.11 Toolbox for Section 1
This handbook provides helpful tools to identify and prepare the appropriate
level of environmental review for a project. A toolbox, provided at the end of
each section, includes a list of helpful references, checklists, and other items
discussed in the section.
Tools for Section 1
Web sites referenced:
Code of Federal Regulations,
http://www.access.apo.gov/riara/cfr/cfr-table-
search.html#paael
Appendices referenced:
CEQ Regulations for Implementing NEPAAppendix A
EPA's NEPA Implementing RegulationsAppendix B
Other tools referenced:
EPA Regional Contact List (follows)-Table 1-1
EPA Regional Map (follows)-Figure 1-2
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Figure 1 -2. EPA REGIONAL MAP
I iv=.t
AnrencaPi Sanrca
hlolhem Mariana
islands
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Table 1-1. EPA REGIONAL CONTACTS
Region 1 (CT, MA, ME, NH, Rl, VT)
Environmental Protection Agency
1 Congress St. Suite 1100
Boston, MA 02114-2023
http://www.epa.gov/region01/
Phone:(617)918-1111
Fax:(617)918-1809
Toll free within Region 1: (888) 372-7341
Region 2 (NJ, NY, PR, VI)
Environmental Protection Agency
Environmental Review Section
290 Broadway - 25th floor
New York, NY 10007-1866
http://www.epa.gov/region02/spmm/r2NEPA.htm
Phone:(212)637-3504
Fax:(212)637-3771
Region 3 (DC, DE, MD, PA, VA, WV)
Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029
http://www.epa.gov/region03/
Phone:(215)814-5000
Fax: (215)814-5103
Toll free: (800) 438-2474
E-mail: r3public@epa.gov
Region 6 (AR, LA, NM, OK, TX)
Environmental Protection Agency
Fountain Place 12th Floor, Suite 1200
1445 Ross Avenue
Dallas, TX 75202-2733
http://www.epa.gov/region06/
Phone:(214)665-2200
Fax: (214)665-7113
Toll free within Region 6: (800) 887-6063
Region 7 (IA, KS, MO, NE)
Environmental Protection Agency
901 North 5th Street
Kansas City, KS 66101
http://www.epa.gov/region07/
Phone:(913)551-7003
Toll free: (800) 223-0425
Region 8 (CO, MT, ND, SD, UT, WY)
Environmental Protection Agency
1595 Wynkoop Street
Denver, CO 80202-1129
http://www.epa.gov/region08/
Phone:(303)312-6312
Fax: (303)312-6339
Toll free: (800)227-8917
E-mail: r8eisc@epa.gov
Region 4 (AL, FL, GA, KY, MS, NC, SC, TN)
Environmental Protection Agency
Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, GA 30303-8960
http://www.epa.gov/region4/
Phone: (404) 562-9345 Water Division
Fax: (404) 562-9318 Water Division
Toll free: (800) 241-1754 Customer Service
Region 5 (IL, IN, Ml, MN, OH, Wl)
Environmental Protection Agency
77 West Jackson Boulevard
Chicago, IL 60604-3507
http://www.epa.gov/region5/
Phone: (312)353-2000
Fax: (312)353-4135
Toll free within Region 5: (800) 621-8431
Region 9 (AZ, CA, HI, NV)
Environmental Protection Agency
75 Hawthorne Street
San Francisco, CA 94105
http://www.epa.gov/region09/
Phone: (415)947-8000
(866) EPA-WEST (toll free in Region 9)
Fax: (415)947-3553
E-mail: r9.info@epa.gov
Region 10 (AK, ID, OR, WA)
Environmental Protection Agency
1200 Sixth Avenue
Seattle, WA 98101
http://www.epa.gov/region10/
Phone: (206)553-1200
Fax: (206) 553-2955
Toll free: (800) 424-4372
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Section 2.0 Categorical Exclusions and Extraordinary Circumstances
2.1 What is a categorical exclusion?
Categorical exclusions (CATEXs) are categories of actions that do not
individually or cumulatively have a significant effect on the quality of the human
environment and that have been found to have no such effect. CATEXs
applicable to EPA actions are listed at 40 C.F.R. § 6.204(a). Sections 2.5 and 2.6
discuss the process for preparing the information to be provided to EPA in
support of a request for a CATEX.
2.2 Is the project eligible for a CATEX?
Determining a project's eligibility for a CATEX is the first step in the environmental
review process. As part of the CATEX determination, EPA determines whether
there are any extraordinary circumstances that would prevent the project from
being eligible for a CATEX. If the proposed project is eligible for a CATEX and no
extraordinary circumstances are involved, no further NEPA review is required.
EPA has published the full set of actions eligible for a CATEX determination in 40
C.F.R. § 6.204. Based on § 6.204 (a)(l) (ii)(iii), and
(v), the following types of actions related to EPA dete[mines whether a
infrastructure projects are eligible for exclusion: proposed project is eligible for
a categorical exclusion.
> Actions relating to existing sewer systems, drinking water supply systems, and
storm water systems that involve:
minor upgrading, or minor expansion of system capacity or rehabilitation
(including functional replacement) of the existing system and system
components, or
construction of new minor ancillary facilities adjacent to or on the same
property as existing facilities.
System components include:
the sewer collection network and treatment system;
the system to collect, treat, store, and distribute drinking water; and
storm water systems, including combined sewer overflow systems.
This category does not include actions that:
involve new or relocated discharges to surface or ground water;
will likely result in the substantial increase in the volume or the loading of
pollutant to the receiving water;
will provide capacity to serve a population 30% greater than the existing
population;
are not supported by the state, or other regional growth plan or strategy;
or
Final 15 EPA Publication No. 3 / 5-K-08-001
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directly or indirectly involve or relate to upgrading or extending
infrastructure systems primarily for the purposes of future development.
> Actions in unsewered communities involving the replacement of existing
onsite systems, providing the new onsite systems do not result in:
substantial increases in the volume of discharge,
the loadings of pollutants from existing sources, or
relocation of existing discharge.
> Actions for award of grants authorized by Congress under EPA's annual
appropriations acts that are solely for reimbursement of the costs of a project
that was completed prior to the date the appropriation was enacted.
It is important for grant applicants to consult EPA early in the design stage to
determine whether their projects may be eligible for a CATEX. A project cannot
be eligible for a CATEX unless it fits within a category of actions identified as
eligible in § 6.204(a). Further, projects are not eligible for a CATEX if one of the
extraordinary circumstances listed in § 6.204 paragraphs (b)(l) through (b)(10)
are involved (see Section 2.3 for further details).
2.3 When would a project not qualify for a CATEX and what are extraordinary
circumstances?
A proposed action is not eligible for a CATEX if any
extraordinary circumstances are involved. An action
that may be eligible for a CATEX is subject to
sufficient environmental review to determine
whether any extraordinary circumstances are
involved. Information and documentation, including
information and documentation on cross-cutters,
may be needed to verify that a proposed project
does not involve any extraordinary circumstances
and is, therefore, eligible fora CATEX.
Extraordinary circumstances
are "those circumstances
listed in § 6.204 that may
cause a significant
environmental effect, such
that a proposed action that
otherwise meets the
requirements of a categorical
exclusion may not be
categorically excluded" (40
C.F.R. § 6.102 (b)(6)).
Extraordinary circumstances are identified as those circumstances listed in 40
C.F.R. §6.204 that may cause a significant environmental effect. EPA has
identified the extraordinary circumstances that would make a proposed action
ineligible for a CATEX as follows (§ 6.204 (b)(l) through (10)):
(1) The proposed action is known or expected to have potentially significant
environmental impacts on the quality of the human environment either
individually or cumulatively over time.
(2) The proposed action is known or expected to have disproportionately high
and adverse human health or environmental effects on any community,
including minority communities, low-income communities, or federally-
recognized Indian tribal communities.
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(3) The proposed action is known or expected to significantly affect federally
listed threatened or endangered species or their critical habitat.
(4) The proposed action is known or expected to significantly affect national
natural landmarks or any property with nationally significant historic,
architectural, prehistoric, archeological, or cultural value, including but not
limited to, property listed on or eligible for the National Register of Historic
Places.
(5) The proposed action is known or expected to significantly affect
environmentally important natural resource areas such as wetlands,
floodplains, significant agricultural lands, aquifer recharge zones, coastal
zones, barrier islands, wild and scenic rivers, and significant fish or wildlife
habitat.
(6) The proposed action is known or expected to cause significant adverse air
quality effects.
(7) The proposed action is known or expected to have a significant effect on
the pattern and type of land use (industrial, commercial, agricultural,
recreational, residential) or growth and distribution of population including
altering the character of existing residential areas, or may not be consistent
with state or local government, or federally-recognized Indian tribe
approved land use plans or federal land management plans.
(8) The proposed action is known or expected to cause significant public
controversy about a potential environmental impact of the proposed
action.
(9) The proposed action is known or expected to be associated with providing
financial assistance to a federal agency through an interagency
agreement for a project that is known or expected to have potentially
significant environmental impacts.
(10) The proposed action is known or expected to conflict with federal, state or
local government, or federally-recognized Indian tribe environmental,
resource-protection, or land-use laws or regulations.
2.4 Can EPA use a CATEX that another federal agency has provided for the
same project?
Each federal agency has its own regulations pertaining to the NEPA
environmental review process, including its own list of categorical exclusions.
Actions that may be categorically excluded by one federal agency's
regulations may not be eligible for a CATEX under the regulations of another. It
is, therefore, important for grant applicants to consult with EPA early in the
process to determine whether their actions may be eligible for a CATEX under
EPA's regulations implementing NEPA.
Although EPA makes CATEX determinations based on its own regulations, it can
use information collected as part of another agency's NEPA process. Grant
applicants having a CATEX determination resulting from another agency's NEPA
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review of their project should provide that information to EPA as part of any
request for a CATEX.
2.5 What is the grant applicant's role in preparing a CATEX?
Grant applicants may initiate a request for a CATEX determination if their project
fits within a category of actions eligible for a CATEX in EPA's regulations at 40
C.F.R. § 6.204 and does not involve any extraordinary circumstances (See
Sections 2.2 and 2.3). If the applicant does not initiate the request for a CATEX,
EPA may do so. The grant applicant should write a letter that provides the
following information when requesting a CATEX determination:
Description of the proposed action
Statement that identifies the category of actions eligible for a CATEX that
the action fits within, explains how the action fits within that category, and
explains why the action does not involve any extraordinary circumstances
Project map(s)
Cross-cutter coordination and consultation information, if applicable (See
Appendix C).
The grant applicant should draft the project description with sufficient detail to
clearly explain the scope of the proposed project. For example, where
applicable, the project description should include a description of the existing
equipment and structures involved in the project, as well as any replacement or
ancillary equipment and structures. Additional information that the applicant
believes EPA may need for evaluation purposes, such as a list of the location,
size, and linear feet of all pipe being rehabilitated or replaced, as well as the size
and linear feet of the new pipe being installed, should be included as an
attachment.1
2.5.1 What is included in cross-cutter coordination and consultation?
As stated above, a proposed project is not eligible for a CATEX if an
extraordinary circumstance is involved with the proposed project. As noted in
Section 2.3, some of the extraordinary circumstances are concerned with the
potential impacts to certain environmental resources. Accordingly, information
obtained from cross-cutter agencies can provide information on those
environmental resources and whether an extraordinary circumstance may be
involved with a project. Thus, responses obtained through cross-cutter
coordination and consultation can assist and support the justification that a
particular extraordinary circumstance is not involved with a proposed project.
Nofe, the EPA grant regulations at 40 C.F.R. § 3/.3 define equipment as "tangible, non-expendable,
personal property having a useful life of more than one year and an acquisition cost of $5,000 or more
per unit."
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Please refer to Appendix C for information concerning what is included in the
cross-cutter coordination and consultation.
In some cases, a project eligible for a CATEX may not require any coordination
with the cross-cutter agencies. For example, if a pump or other piece of
equipment in an existing building is being replaced or an existing pipe is being
slip-lined, the project may not impact any environmental resources and as a
result would not need cross-cutter coordination and consultation. Grant
applicants should coordinate with EPA if it appears their project does not need
cross-cutter concurrence.
2.6 What is EPA's role in the CATEX process?
EPA is responsible for reviewing information provided by grant applicants
requesting a CATEX determination and determining whether the project may be
categorically excluded. If the proposed project is eligible for a CATEX, EPA may
prepare a CATEX determination memo. Figure 2-1 shows the categorical
exclusion process.
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Figure 2-1. NEPA Review Process for Categorical Exclusions
Grant applicant
discusses the scope
of the proposed
action with EPA
Grant applicant
provides information
to EPA for a CATEX
determination
EPA's responsible
official reviews
request for CATEX
EPA's responsible
official issues
CATEX determination
EPA allows
applicant to proceed
with proposed action
and awards grant
if project is
categorically excluded
If project is
ineligible for CATEX,
applicant may need
to prepare EID or
Draft EA
After a project has been determined as eligible for a CATEX, EPA may revoke
the CATEX determination and require a complete environmental review if EPA
determines that any of the following circumstances apply to a project:
The project no longer meets the requirements for a CATEX as a result of
changes in the project.
The project involves extraordinary circumstances as determined from new
evidence.
The project may violate or has violated federal, state, local, or tribal laws.
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2.7 Toolbox for Section 2
Tools for Section 2
Appendices referenced:
Appendix B40 C.F.R. Part 6 (see listing of Categorical
Exclusions and Extraordinary Circumstances, § 6.204)
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Section 3.0 Environmental Information Document
3.1 What is an Environmental Information Document?
An environmental information document (BID) describes in detail factors relating
to the project, including a description of the proposed project, project need,
existing environment, and, as applicable, any existing drinking water and
wastewater systems affected by the grant project. The BID also includes an
analysis of the environmental impacts of the proposed project and its
reasonable alternatives, including the "no action" alternative. EPA's regulations
implementing NEPA require grant applicants to submit an BID for their project
unless EPA has determined that the project either is eligible fora CATEX or will
require an EIS.2 Grant applicants should consult with their EPA point of contact
on the scope of the EID they need to prepare. Generally, the scope of the EID is
commensurate to the size and magnitude of the proposed project.
3.2 What should an EID contain?
To produce a sufficient EID, it is important to first understand what type of
information EPA needs to conduct its NEPA review. There are generally nine
components of an environmental review, and the EID should address each
component. The contents of an EID are described in the subsections that follow.
Grant applicants should consult their EPA point of contact for further guidance
on the scope of their EID (See Table 1 -1).
3.2.1 Purpose and Need for the Project
This section of the EID provides a description of the purpose of the project and
why it is needed. The purpose of the project includes the goals and objectives of
the proposed project. For example, the purpose of the project may be to
improve water quality to meet established EPA and state standards. The need
for the project can be stated as a solution to a problem. For example, the
project need may be to: solve a particular water quality or water quantity
problem; solve a specified public health concern; correct inadequate systems
or system components; or increase treatment due to more stringent effluent
limits. If needed, the grant applicant should contact EPA for guidance on how
to best describe the purpose and need for a project in the EID.
3.2.2 Proposed Project and Funding Status
This section of the EID provides a description of the project including its cost.
Providing a good project description is one of the most important steps in
preparing the EID because much of the information in the EID is based on the
proposed project. The project description includes a project summary, the
'40C.F.R. § 6.300 (c)(l]
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planning period, the name of the owner and operator of the facilities, location
of the facilities, and the planning area description. Applicants should also
explain how they expect their project to address the need stated in the Purpose
and Need Section of the document (see Section 3.2.1 above).
The BID should describe the project for which EPA is providing funding. The BID
also should describe any aspects of the project that have the potential to cause
cumulative impacts. All phases of the project should be described if it is to be
completed in phases. The BID should describe the relevant design parameters,
including a description of major unit processes; flow diagrams; sewer and water
pipe lengths, sizes, and locations; and, basic design criteria.
Applicants should include with the BID an 8.5 by 11 inch project map suitable for
black and white photocopying. For linear projects, applicants may need to use
more than one map to show the project at a legible scale. In addition to other
figures and maps needed to adequately describe the project, applicants
should include a copy of a United States Geological Survey (USGS) 7.5-minute
topographic map showing the existing and proposed facilities associated with
the project and the overall project planning area. Clearly identify the location
of major project components on the maps, such as treatment works, sewers,
water lines, pump stations, storage facilities, and so forth.
The description of project costs should include the proposed total project costs;
project costs for the portion of the project to be funded by EPA; and all other
funding sources for the entire project, broken down by source, amount, and
status of funds.
3.2.3 Existing Environment
This section of the BID describes the current environmental and cultural
resources in the planning area that may be affected by the project as well as
areas that may be affected by proposed alternatives. As a general rule, avoid
lengthy descriptions by providing succinct descriptions that are focused and
written in language that is easy to understand. The extent of data and the
analysis that are included should correspond to the significance of the impact
with less significant material summarized, consolidated, or simply referenced.
The baseline information should be discussed in proportion to the potential for
impact to an environmental resource. For example, if soils are minimally
impacted then the baseline information for soils does not need to be described
in great detail. In the case of surface water discharges, for example, it may not
be necessary to describe soil conditions in detail; however, any selected
alternative using soil for treatment (septic tanks, spray irrigation, overland flow),
should include a thorough description of soil conditions.
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The BID describes any special or sensitive environmental areas such as wetlands;
air quality non-attainment areas; endangered or threatened species; prime or
unique agricultural lands; areas of recognized scenic, recreational,
archeological, or historic value; valuable floral or faunal communities; wild or
scenic rivers; drinking water (surface or ground water) sources; floodplains;
recreational or commercial uses of potential receiving streams; land uses;
transportation; geology and soils; and, parklands or other public lands. A cross-
cutter coordination and consultation review may have revealed that some of
these special environmental resources do not exist in the project area or will not
be impacted by the proposed project. For those special or sensitive
environmental resources not found in the planning area, make a statement
such as "No wetlands, wildlife preserves, prime agricultural lands, or other
environments of special interest are located where they could be impacted by
implementation of the project," and include documentation for such
conclusions, such as letters from administering cross-cutter agencies. Drinking
water and wastewater treatment plants located in air quality non-attainment
areas may also require coordination or consultation with the state agency
responsible for implementing Clean Air Act programs.
In preparing the BID, it is important to identify any community, including minority
and low-income communities, that exists within the overall planning area or may
otherwise be impacted by the project (for example, downstream or downwind
communities). An EPA Web site with an Environmental Justice Geographic
Assessment Tool is available to assist in identifying such communities and
environmental justice information at http://www.epa.aov/enviro/ei/. Applicants
may consult EPA on the best way to identify Environmental Justice (EJ) and
Native American community information for inclusion in the EID.
3.2.4 Alternatives Analysis
All reasonable alternatives and "no-action" are described, analyzed, and
presented in a comparative form in this section. These alternatives may be ones
that the applicant considered during project planning. For example, alternatives
may relate to upgrading an existing facility, building a new facility,
regionalization, the location of the project, the process, specific technologies,
the means for handling materials, and so forth. EPA's regulations implementing
NEPA require evaluation of no-action, which provides the baseline for
comparison of the action alternatives.
The EID may identify the grant applicant's preferred alternative and should state
the reasons why this alternative is the preferred alternative. An explanation
should be provided for why each of the other alternatives, including the no-
action, was not proposed. The explanation may include information such as
present worth or equivalent annual cost comparisons, reliability of the
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alternatives, complexity of the alternatives, significant environmental effects,
and legal or institutional constraints.
3.2.5 Environmental Impacts and Mitigation
In this section, the BID assesses, describes, and documents all environmental
impacts of each of the reasonable alternatives on each of the different
environmental and cultural resources discussed in the Existing Environment
section of the EID (see Section 3.2.3). This section also describes any potential
impacts, both beneficial and adverse. The EID should briefly note which
environmental resources are not located in the project area and therefore
would not be potentially impacted by the proposed action. The EID should also
describe the predicted impacts of the proposed project(s) on any special
environmental resources cited in the Existing Environment section.
In discussing environmental impacts, applicants
should address the direct, indirect, and
cumulative impacts of the proposed action
and alternatives. For example, one indirect are directly related to the project
impact of a project could be new actlvlty'lndirect impacts are
Direct effects "are caused by the
action and occur at the same time
and place" (40 C.F.R. § 1508.8) and
"caused by the action and are later
in time or farther removed in
distance, but are still reasonably
foreseeable" (40 C.F.R. § 1508.8).
development and growth that would be
encouraged or enabled by the construction of
the project. In the EID, the applicant would
address the impact of that growth, including
potable water demands, wastewater produced,
land use changes, community service needs, impact on natural areas or wildlife,
and other such concerns.
A cumulative impact is "the impact on the environment [that] results from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can
result from individually minor but collectively significant actions taking place
over a period of time" (40 C.F.R. § 1508.7). Thus, cumulative impacts may result
from repeated actions or from the interaction of multiple actions on a given
environmental resource.
This section of the EID includes an evaluation of the potential for cumulative
impacts that may occur as a result of the applicant's proposed project when
combined with other actions. The applicant should pay particular attention to
land use changes and air and water quality impacts and attach, in an
appendix, any available documentation of the analysis.
Where there are multiple projects, cumulative impacts are possible and can
occur. Geographical boundaries may limit the extent of cumulative impacts.
For example, water resource impacts usually occur within a particular watershed
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or aquifer. Therefore, in conducting the cumulative impact analysis, it is
important to define the temporal and spatial boundaries of any resource that
may potentially be cumulatively impacted by the proposed action or
alternatives. Although mitigation measures are not required for cumulative
effects, mitigation measures should be discussed and analyzed as part of the
cumulative effects analysis.
More information on cumulative impacts is available in CEQ's handbook,
Considering Cumulafive Effects Under the National Environmental Policy Act,
which is available on CEQ's website at
http://cea.eh.doe.aov/nepa/ccenepa/ccenepa.htm.
Grant applicants should also address mitigation
measures designed to reduce or eliminate
adverse environmental impacts. The BID should
describe all mitigation measures that would
reduce or lessen the potential for environmental
impacts.
3.2.6 Interagency Coordination and
Consultation Activities
Applicants should document any coordination
or consultation process in this section of the BID.
Federal law and executive orders require that ^^^^^^^^^^^^^^^^^
agencies other than EPA review certain environmental impacts of projects. If the
applicant chooses to undertake the cross-cutter coordination and consultation
process, then the responses obtained should be documented and included in
an appendix to the BID. The information gathered as part of the cross-cutter
review often is used to determine whether there are significant environmental
impacts and whether mitigation is necessary to protect environmental
resources.
When conducting interagency coordination, the applicant should consider
whether:
Mitigation includes: avoiding the impact
altogether by not taking a certain action
or parts of an action; minimizing impacts
by limiting the degree or magnitude of
the action and its implementation;
rectifying the impact by repairing,
rehabilitating, or restoring the affected
environment; reducing or eliminating the
impact over time by preservation and
maintenance of operations during the life
of the action; compensating for the
impact by replacing or providing
substitute resources or environments
(40C.F.R. § 1508.20).
All pertinent stakeholders have been identified, including state, local,
federal, and tribal agencies that need to
be involved in the project.
All required cross-cutter environmental
reviews needed for the project have
been identified and the respective
agencies contacted for required
The EID should contain a clear
explanation of the consultation
process; compliance with
requirements; and for some
resources, the written
documentation from the
agencies consulted.
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consultation or discussion of environmental information needs.
. The intergovernmental review process has been considered per Executive
Order 12372 (See the intergovernmental review information at
http://www.whitehouse.gov/omb/grants/spoc.html).
If a grant applicant undertakes the coordination and consultation process for
cross-cutters, EPA suggests that the grant applicant complete to the extent
possible all necessary coordination with federal/state/local agencies. Where
applicable, EPA may send a non-federal representative designation letter to the
appropriate agency or authority [e.g., U.S. Fish and Wildlife Service (USFWS), the
U.S. National Marine Fisheries Service (NMFS), State Historic Preservation Office
(SHPO)] designating the grant applicant as EPA's non-federal representative to
initiate informal consultation under the Endangered Species Act of 1973 (ESA) or
Section 106 of the National Historic Preservation Act (NHPA).
If there is a potential for one or more resource impacts to occur, notify EPA early
in the process so that it can be involved in the coordination and consultation. It
may also be necessary to coordinate with non-federalin addition to federal
agencies that may have authority over and an interest in the proposed project
or area. These agencies could include state wildlife agencies, local
governments, councils of government, water districts, river authorities, and
others.
In this section of the EID, list all sources consulted for information and/or
concurrence.
3.2.7 Public Participation
Public participation may also be included in the project planning process. The
EID should include a summary and documentation of any public involvement
process, including the public meeting date, public meeting summary or
transcripts, and evidence of publication of the meeting notice in the local
newspaper.
If there are comments opposing any aspect of the project, the applicant should
explain the response to or resolution of the issue raised by the comments. If there
is significant public objection based on an environmental concern, EPA may
need to prepare an EIS.
3.2.8 List of Preparers
In this section, list the names and qualifications (expertise, experience,
professional disciplines) of the people who were primarily responsible for
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preparing the BID and the section(s) they prepared. The list should also include
their address, phone number, and agency or firm affiliation.
3.2.9 List of References
This section should list the references that were used in preparing the BID.
References include, but are not limited, to source documents, studies, scientific
literature, and other planning documents used to provide information and
support analyses contained in the BID.
3.3 How are other state and federal agency reviews used?
The grant applicant is encouraged to incorporate and summarize other state
and federal agency environmental reviews into the BID to reduce the length of
the BID. However, it is important that summarized information does not impede
the review of the BID.
Material based on proprietary data that is not available for public review and
comment should be marked Confidential Business Information if submitted with
an BID.
3.4 What are some helpful hints for efficient EID preparation?
In preparing the EID, grant applicants should avoid statements that are
ambiguous, inconsistent, unsubstantiated, redundant, or biased. The text should
be easy to understand and organized logically.
The EID should be as brief as practical and the information presented should be
current and well referenced. If data gaps exist, clearly identify them. Use maps,
figures, and tables when possible. The use of such materials is an effective way
to convey large amounts of information without extensive text. These materials
can include regional, vicinity, and project maps; exhibits such as graphics,
diagrams, and graphs; and data, figure, and narrative tables.
EPA has identified several common shortcomings in the preparation of EIDs:
. The project need is not well documented.
. The project description lacks specific detail.
. Project map(s) are not suitable for public distribution.
. The project costs do not match the grant application.
. Cross-cutter agencies documentation is not included with the EID.
. The description of the project sent to the cross-cutter agencies does not
match the EID description.
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Issues raised by a cross-cutter agency or authority are not addressed.
. Reasonable alternatives are not proposed or evaluated.
. EIDs prepared for another agency are submitted without revisions to meet
EPA's needs.
Figure 3-1 identifies the primary points of grant project integration between BID
preparation and NEPA review.
Figure 3-1. Integration of EID Preparation and
NEPA Review with Grant Project Planning
Grant applicant
defines proposed
project and
alternatives
Grant applicant
prepares EID
Grant applicant
submits EID,
including cross-
cutter coordination
and consultation
documentation
EPA reviews EID
Applicant provides
additional information,
if necessary
EPA determines
the level of
environmental
review and then
conducts the review
EPA completes
the environmental
review, issues final
NEPA determination,
and makes decision
on award of grant for
construction
Proceed with
selected action
and mitigation,
where necessary
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3.5 What is EPA's role in the preparation of the EID?
After the grant applicant submits the EID, EPA reviews it for completeness and
accuracy. EPA may ask the applicant to revise or supplement the EID if EPA
determines more information is needed. The grant applicant should consult with
the EPA point of contact to determine the appropriate electronic format for
submitting an EID. This allows EPA to review the document electronically and to
use a document reader.
Based on the information in the EID, EPA may prepare an EA. If the project is
found to have no significant effect, then EPA documents the findings with the
preparation of a FONSI, which is made available to the public for a 30-day
comment period. At the end of the 30-day comment period, EPA fully considers
comments submitted on the EA/FONSI before taking any action. If EPA
determines that the project may have potentially significant environmental
impacts, EPA prepares an EIS.
Once EPA has completed the NEPA environmental review process, EPA
determines whether to award the construction grant. If EPA determines that it
will award the grant, it may award a construction grant or, where applicable,
amend the existing planning grant to include the construction phase. At that
time, the grant applicant also will be given permission to proceed with the
project.
3.6 Toolbox for Section 3
To understand how reviewers evaluate the EID, a sample checklist used by EPA
is provided. This EID checklist is provided for information only. It is a broad-based
checklist for all infrastructure projects. It is recommended that this checklist be
used as a tool when preparing the EID; completing the EID checklist is not a
requirement. It is also important to note that not all of the items listed on the
checklist may need to be addressed in the EID. Only those items pertaining to
the project should be addressed in the EID. Thus, EPA encourages the grant
applicant to discuss the scope of any EID with the EPA contact for the project.
Tools for Section 3
Web sites referenced:
EPA Environmental Justice Geographic Assessment Tool,
http://www.epa.gov/enviro/ej/
Considering Cumulative Effects Under the National
Environmental Policy Act,
http://cea.eh.doe.aov/nepa/ccenepa/ccenepa.htm
Other tools referenced:
EID checklist (follows)
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Environmental Information Document Not
Project Name: Page Adequate Inadequate Applicable
A. Proposed Project and Funding Status
1 . Project Purpose and Need (select at least
one)
a. Water Quality/Water Quantity
Problems
b. Public Health Concerns
c. Inadequate System or System
Components
d. More Stringent Effluent Limits
(wastewater only)
(1) Existing Effluent Limitations
(2) Proposed Effluent Limitations
e. Other (specify: )
2. Project Description
a. Project Summary
b. Planning Area Description (including a
map with facilities)
c. Planning Period (time period)
d. Description of Project Construction
Phases
e. Owner and Operator of the Facilities
f. Location of the Facilities
g. 8.5 X 1 1 inch. Black and White Project
Map Suitable for Distribution
3. Relevant Design Parameters
a. Description of Major Unit Processes
b. Flow Diagram
c. Sewer/Water Pipe Lengths, Sizes, and
Locations
d. Basic Design Criteria
e. Design Storm (s)
f. Description of Major Storm Water
Components (Structural and Non-
Structural)
g. Estimated Pollutant Removal Capability
(i.e., performance criteria of structural
components)
h. Other
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Environmental Information Document
Project Name: Page
4. Project Cost
a. Proposed Total Project Cost
b. Portion of Total Project Cost Funded by
EPA
c. List of Amount, Sources, and Status of
All Funding Sources
B. Existing Environment As Pertains to Project
1. Public Health Problems Due to Water
Quality
2. Water Quality Problems, Fish Kills, etc.
3. Surface & Ground water Hydrology
4. Drinking Water Sources and Supply
5. Physiography, Topography, Geology &
Soils
6. Federally Endangered & Threatened
Species
7. Air Quality (non-attainment area needs
state sign-off)
8. Environmental Justice Information
a. Conditions, Minority & Low Income
Areas (include median family income)
b. Census Maps
9. Land Use & Development, Percent
Impervious Cover, Pollutant Sources
10. Identification of Floodplains and Wetlands
C. Existing Wastewater/Drinking Water/Storm
Water System
1 . General Description of Wastewater
Collection & Treatment and Storm Water
System & Map
2. Existing Wastewater System (wastewater
only)
a. Wastewater Flows: Average, Peak, Wet
Weather
b. Influent Characteristics
c. Major Industrial Users
d. Residuals (sludge) Disposal
e. Service Area
f. Infiltration and Inflow
3. Existing Drinking Water System (drinking
Adequate
Not
Inadequate Applicable
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Environmental Information Document
Project Name: Page
water only)
a. Description of Treatment and
Distribution System
b. Water Demand: Average, Peak
c. Surface Water Source (intake locations,
permitted and actual withdrawal)
d. Ground water Source (wells &well
fields)
e. Water Storage
f. Raw Water Characteristics
g. Residuals (sludge) and Backwash
Disposal
h. Service Area
4. Existing Storm Water System (storm water
only)
a. Detailed Description of Existing Storm
Water System
b. Description of Major Structural
Components
c. Description of Non-Structural
Components/Actions
d. Design Parameters/Performance
Criteria/Permits
5. Existing System Performance
a. National Pollutant Discharge
Elimination System (NPDES) Violations
b. Safe Drinking Water Act Violations
c. Other System Problems
D. Need for Proposed Project
1 . Expanded Description of Need
2. Land Use Projections/Impervious
Cover/Pollutant Sources
3. Population Forecast/Projections
4. Calculations and Assumptions for
Forecasted Flow and Wasteload
5. Future Environment Without the Project
E. Analysis of Alternatives
1 . Development of Alternatives
a. No-action
Adequate
Not
Inadequate Applicable
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Environmental Information Document
Project Name: Page
b. Optimum Utilization of existing facility
(1) Flow Reduction
(2) Water Conservation
c. New Construction Alternatives
d. Source Reduction
e. Non-structural and Structural Storm
Water System Components
2. Alternative Screening (discussion for each
alternative)
a. Present Worth or Equivalent Annual
Cost
b. Reliability
c. Complexity
d. Environmental Factors
e. Feasibility (constraints)
3. Identification of Preferred Alternative
F. Environmental Consequences and
Mitigation Measures for Selected Alternative
1. Direct
2. Secondary Impacts of Future Growth and
Development
3. Unavoidable Adverse Impacts
4. Minimization of Adverse Impacts
5. Mitigation
6. Cross-cutter Environmental Laws and
Coordination and Consultation Process
a. Archeological Resources
b. Air Quality
c. Coastal Barrier Resources
d. Coastal Zones
e. Endangered Species
f. Environmental Justice
g. Floodplains
h. Wetlands
Adequate
Not
Inadequate Applicable
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Environmental Information Document
Project Name: Page
i. Protected Farmlands
j. Fish and Wildlife
k. National Historic Resources
1. Drinking Water Supplies
m. Wild and Scenic Rivers
n. Essential Fish Habitat
7. Intergovernmental Review per Executive
Order 12372
8. Necessary Permits (NPDES, wetlands, etc.)
Issued
9. Necessary Intermunicipal Agreements
Executed
G. Public Participation
1. Summary of Public Participation
2. Documentation of any Public
Participation
a. Public Meeting Date
b. Public Meeting Record
c. Copy of any Publication/Copy of
Newspaper Advertisement
Adequate
Not
Inadequate Applicable
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Section 4.0 Environmental Assessment
4.1 What is an environmental assessment?
An environmental assessment (EA) is a concise public document that provides
sufficient evidence and analysis for EPA to determine whether to issue either a
finding of no significant impact (FONSI) or a notice of intent (NOI) to prepare an
EIS. EPA's decision to finalize and issue the EA and FONSI or to move forward with
the EIS process is based on whether or not the project will have significant
impacts.
EPA has the legal obligation to issue
the NEPA document, to approve
NEPA determinations, and to fulfill
other cross-cutter federal
requirements before approving or
funding for design or construction.
4.2 Who is responsible for preparing an EA?
Issuing an EA is the regulatory responsibility of
EPA. The grant applicant's role in the
development of an EA is generally limited to
preparing the EID; information gathered and
compiled in the EID is used to prepare the EA.
As an alternative pursuant to 40 CFR § 6.303, the *^^^^^^^^^^^^^~
grant applicant in consultation with EPA may prepare a Draft EA instead of an
EID via a third-party agreement or with the grant applicant's resources. It is
important to note that grant funds may not be used to prepare a federal
agency document, such as a Draft EA, but may be used to prepare an EID. If
the applicant chooses to prepare a Draft EA, the applicant would need to pay
for a Draft EA with its own resources. Where the grant applicant prepares the
Draft EA, EPA is responsible for the content and accuracy of the Draft EA and
finalizing the EA process.
4.3 Overview of an EA
Preparing an EA is not necessary for cases in which EPA
has already determined that an EIS will be prepared.
The framework of an EA is based on site-specific
proposed actions, such as size, scope, and level of
detail for each effect. The EA is tailored to the project's
environmental resources, such as presence of or
potential for endangered species, essential fish habitat,
wild and scenic rivers, coastal zones, seismic areas,
floodplains, prime farmland, and others. Resource areas
that are excluded from further study are identified in the
beginning sections of the EA. Figure 4-1 presents the
basic overview of an EA.
The basic components
of an EA include a brief
discussion of the
purpose and need for
the project, alternatives,
environmental impacts
of the proposed action,
and a listing of
agencies and persons
consulted.
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Purpose
Scope
Content
Figure 4-1. EA Overview
Briefly provides sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement or a finding of no significant impact (40 C.F.R.
§ 1508.9)
Reviews all environmental impacts (natural and human) and
identifies alternatives considered
Describes and identifies:
Purpose and need for the proposed action
Proposed action
Alternatives considered (including the no-action
alternative)
Affected environment (including baseline conditions)
Environmental consequences of the proposed action
and alternatives
Agencies and persons consulted
Any mechanism (e.g., special grant conditions) needed
to ensure that mitigation is carried out
Note: The EA is provided for review upon request or as
an attachment to the FONSI.
4.4 What is the framework for a FONSI?
A FONSI is a federal agency document that briefly presents the reasons why an
action, not otherwise excluded (§ 1508.4) from NEPA review, will not have a
significant effect on the human environment and for which an EIS will not be
prepared (40 C.F.R. § 1508.13). Figure 4-2 presents an overview of a FONSI.
Purpose
Scope
Content
Public
Participation
Figure 4-2. FONSI Overview
Notifies the public of EA results and any mitigation plans
Explains why an action will not have significant effect on
the natural or human environment
Includes a summary of the EA or the complete EA as an
attachment
Explains why an action will not have a significant effect on
the environment
Describes, if necessary, mitigation measures required to
ensure that the anticipated environmental impacts will not
be significant; a mitigation plan may also be described to
ensure that mitigation is implemented
Describes changes that have been made in the proposed
action to eliminate or reduce environmental impacts
Any mechanism (e.g., special grant conditions) needed to
ensure that mitigation is carried out
Provides a 30-day public comment period before
proceeding with action
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4.5 How does the public participate in the EA process?
EPA issues a preliminary FONSI if it determines, based on the information in the
EA, that the proposed action will not have a significant effect on the
environment. The purpose of the FONSI is to explain why a proposed action will
not have a significant impact on the environment. The FONSI also states any
mitigation measures that will be implemented. The public is given 30 calendar
days to review and comment on the preliminary FONSI and the supporting
analysis documented in the EA. No administrative action is taken on a project
until the required 30-day comment period is completed and any substantive
comments received are considered. If no substantive comments are received,
EPA finalizes the EA and FONSI. When substantive comments are received, EPA
determines how best to address the comments.
Figure 4-3 shows the integration of the EID preparation and NEPA review as it
relates to the grant project process.
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Figure 4-3. EID Preparation NEPA Review/Grant Project
Planning Integration (Environmental Assessments)
Grant applicant defines
the proposed project
and alternatives
EPA provides
initial review of
EID/Draft EA
Grant applicant
evaluates potential
impacts associated
with the proposed
action, alternatives
and mitigation, and
prepares the EID or
Draft EA
EPA or grant
applicant may hold
public meeting
Grant applicant
submits EID or Draft
EA, including applicable
cross-cutter
coordination/consultation
documentation
Grant applicant
revises EID or
Draft EA,
if necessary
EPA
prepares EA or reviews
and adopts the
applicant's Draft EA,
finalizes EA, and if
appropriate, prepares
preliminary FONSI
30-day public
review of EA and
preliminary FONSI
EPA issues final
FONSI; EPA
may also provide a
copy of the EA/FONSI
to grant applicant
EPA awards/amends
grant for construction
Grantee receives
permission to
proceed with
final design
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Section 5.0 Environmental Impact Statement
5.1 What is the definition of an Environmental Impact Statement (EIS)?
An environmental impact statement (EIS) is a detailed
document that is required if federal actions are likely to
have significant impacts on the environment. Because
the potential for significant impacts exists, an EIS
presents an evaluation of a proposed action and
reasonable alternatives in greater detail than an EA.
An Environmental Impact
Statement "means a
detailed written
statement as required by
section 102(2)(C) of
The EIS also discusses reasonable mitigation measures j; ^ j, '
that are necessary to reduce or eliminate adverse
environmental impacts or possibly enhance the quality
of the human environment.
5.2 Who is responsible for preparing an EIS?
EPA prepares an EIS when it is determined that there are likely to be significant
impacts from a proposed project. EPA initiates the process, conducts the
scoping effort, prepares an EIS document, coordinates the cross-cutter and
public review process, and finalizes the document with a Record of Decision
(ROD). The grant applicant's role in this process typically involves providing EPA
clarification of baseline information, assisting EPA with public meetings or
hearings during the EIS process, and/or assisting EPA if the project changes or if
mitigation is recommended during the review process. As an alternative
pursuant to 40 CFR § 6.303, EPA may enter into third-party agreement with the
grant applicant to hire a contractor to prepare the EIS. It is important to note
that grant funds may not be used to prepare a federal agency document, such
as an EIS. Thus, the applicant would pay for the third-party consultant with EPA
providing technical direction on the preparation of the EIS. In this circumstance,
EPA retains ultimate responsibility for finalizing and issuing the EIS, and preparing
the ROD using the EIS inputs from the third-party consultant.
5.3 When is an EIS prepared?
An EIS is prepared when:
An EA has been initiated or completed, and the findings demonstrate that
significant environmental impacts may occur from the proposed action.
EPA determines that a proposed project may have a potentially
significant impact on the human environment and that mitigation of the
impacts may not be possible. In this case, preparation of an EA is not
necessary.
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ForSAAP grants related to construction, an EIS may be prepared for the
following types of actions:
New regional wastewater treatment facilities or water supply systems for a
community with a population greater than 100,000 (40 C.F.R.
§6.207(a)(l.
Expansion of existing wastewater treatment facilities that will increase the
existing discharge to an impaired water by greater than 10 million gallons
per day (mgd) (40 C.F.R. § 6.207(a)(l
In addition, EPA may decide to prepare an EIS when it is determined that any of
the following conditions exist (40 C.F.R. § 6.207(a)(3)(i) through (xi)):
(i) The proposed action would result in a discharge of treated effluent
from a new or modified existing facility into a body of water and the
discharge is likely to have a significant effect on the quality of the
receiving waters.
(ii) The proposed action is likely to directly, or through induced
development, have significant adverse effect upon local ambient air
quality or local ambient noise levels.
(iii) The proposed action is likely to have significant adverse effects on
surface water reservoirs or navigation projects.
(iv) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe approved land use
plans or regulations, or federal land management plans.
(v) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe environmental,
resource-protection, or land-use laws and regulations for protection of
the environment.
(vi) The proposed action is likely to significantly affect the environment
through the release of radioactive, hazardous or toxic substances, or
biota.
(vii) The proposed action involves uncertain environmental effects or highly
unique environmental risks that are likely to be significant.
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(viii) The proposed action is likely to significantly affect national natural
landmarks or any property on or eligible for the National Register of
Historic Places.
(ix) The proposed action is likely to significantly affect environmentally
important natural resources such as wetlands, significant agricultural
lands, aquifer recharge zones, coastal zones, barrier islands, wild and
scenic rivers, and significant fish or wildlife habitat.
(x) The proposed action in conjunction with related federal, state or local
government, or federally-recognized Indian tribe projects is likely to
produce significant cumulative impacts.
(xi) The proposed action is likely to significantly affect the pattern and type
of land use (industrial, commercial, recreational, residential) or growth
and distribution of population including altering the character of
existing residential areas.
The complete set of detailed EPA criteria for which proposed actions normally
require an EIS is found in 40 C.F.R. § 6.207 (See Appendix B).
5.4 Overview of an EIS
An EIS evaluates the potential for significant impacts from the proposed action
and alternatives. An EIS can include in-depth scientific analyses, additional
agency consultation information and coordination, and additional supporting
studies. The EIS is developed using the general content outlined in Figure 5-1.
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Figure 5-1. Overview of an EIS
Purpose
Scope
Content
Public
Participation
Provides detailed environmental information to decision makers
about the proposed project/action
Examines alternatives and potential for mitigating impacts
Provides a comprehensive review of all impacts of the proposed
action and alternatives
Includes the following:
Cover sheet
Executive summary
Table of Contents
Purpose and need for the proposed action
Proposed action
Alternatives considered (including the no action alternative)
Affected environment (including baseline conditions)
Environmental consequences of the proposed action and
alternatives
Coordination - includes a distribution list of agencies,
organizations, and interested parties, including the public
List of preparers
Index
Appendices
Provides a Notice of Intent (NOI) published by EPA
Provides for a 45-day public comment period on the Draft EIS
(DEIS)
Publishes a Notice of Availability (NOA) for DEIS, Final EIS (FEIS),
and Record of Decision (ROD)
If a public meeting or hearing is held, it should not be held earlier
than 30 days after issuance of the DEIS
Provides for a 30-day wait period on the FEIS prior to EPA's
decision, which is documented in the ROD
5.4.1 What is a Record of Decision (ROD)?
A ROD is a concise public document required under 40 C.F.R. § 1505.2 that
states the final decision on an action for which a Final EIS has been prepared.
The ROD is documented and made available following the 30-day wait period
after the completion of the FEIS. It provides EPA's official decision on the action,
describes the alternatives that were considered and identifies any applicable
mitigation and/or monitoring that may be required. Figure 5-2 presents the
general content and outline of a ROD. EPA may publish a Notice of Availability
(NOA) for the ROD in the same manner as for the announcement of the DEIS
and FEIS releases.
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Purpose
Scope
Content
Public
Participation
Figure 5-2. ROD Overview
Records EPA's decision regarding the proposed major EPA
action*
States EPA's decision and the basis for the decision
Summarizes the EIS analyses and any commitments to
mitigation
Includes the following:
Brief description of the proposed action and
alternatives considered in the EIS, environmental
factors considered, and project impacts
Any commitments to mitigation and states whether all
practicable mitigation measures were adopted
Identification of EPA's preferred alternative, and an
explanation if the environmentally preferred alternative
was not selected
Responds to any substantive comments on the Final EIS
Provides the date of issuance
Signature of the Responsible Official
Provides a notice to announce the decision to the public
ROD is made available to all persons responding to the
DEIS or FEIS and to those requesting it.
Note: The Responsible Official may not make any decisions on the action until the time periods in 40 C.F.R. j
have been met.
1506.10
5.5 How does the public participate in the
EIS Process?
There are several public participation
milestones for the EIS process,
including:
participation in scoping meeting, if
one is held,
45-day public comment period for
the draft EIS,
participation in meeting or hearing
on Draft EIS, if one is held,
30-day review period on the final
EIS prior to the EPA's decision,
which is documented in the ROD.
EISs have the greatest extent of public
participation in the NEPA environmental
review process. Because the need for an EIS
indicates that significant impacts are
predicted, public participation procedures
ensure that the goals of the NEPA process are
achieved.
Public participation in the EIS process begins
when EPA publishes a NOI to prepare an EIS in
the Federal Register. Following issuance of the
NOI, the public will have the opportunity to provide input on the scope of the
EIS. This could include participating in scoping meetings if they are held. The DEIS
and FEIS are distributed to the public and other interested parties for review. A
NOA is published in the Federal Register by EPA announcing the release of the
DEIS for a 45-day review period with any associated public hearing. A NOA is
also published in the Federal Register by EPA for the release of the FEIS for a 30-
day review period. A NOA may be published announcing the release of the
ROD.
Figure 5-3 presents the basic steps of the EIS process and highlights the timing
and duration of public participation activities.
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Figure 5-3, EIS Preparation NEPA Review/Grant Project
Planning Integration (Environmental Impact Statement)
Grant applicant defines
the proposed project
and alternatives
EPA evaluates the
potential environmental
impacts of the
proposed project
If EPA determines
environmental impacts
are potentially
significant, then
proceed with
preparation of EIS*
EPA prepares and
publishes Notice of
Intent (NOI)
EPA conducts
scoping activities;
applicant may assist
EPA evaluates
environmental impacts
and reasonable
alternatives and
prepares/files
of draft EIS
EPA issues NOA
of draft EIS
45-day public
review of Draft EIS;
public meeting may
be held
EPA prepares Final EIS
incorporating comments
and files Final EIS
EPA issues NOA
of final EIS
Mandatory 30-day
waiting period, followed
by issuance of the ROD
Proceed with
selected action
* Note: The grant applicant can use a third party to prepare EIS.
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Index
40 C.F.R. Part 6
Categorical Exclusion (CATEX)
Coordination/Consultation
Council on Environmental Quality (CEQ)
Cross-Cutters
Cumulative Impacts
Environmental Assessment (EA)
Environmental Impact Statement (EIS)
Environmental Information Document (EID)
Extraordinary Circumstances
Finding of No Significant Impact (FNSI)
Major Federal Action
Mitigation Measures
National Environmental Policy Act
National Environmental Policy Act (NEPA)
NEPA
Notice of Availability (NOA)
Notice of Intent (NOI)
Public Participation
Record of Decision (ROD)
Special Appropriations Act Project (SAAP)
viii, 15, 16,57, 124
viii, 4, 8, 15, 17, 18, 19,50,51,
55, 57, 143
19, 143, 144
viii, 50, 51,55, 57, 59, 61,62, 63,
64,65,69, 113, 122
3, 141, 142
25,26,51, 113
4,9,36,50,51,55,75,79,91,
103, 111, 112, 114, 115
9,27,40,42,50,51,52,70,71,
72, 73, 74, 75, 76, 78, 79, 81, 83,
84, 87, 88, 89, 90, 91, 92, 93, 94,
95,96,97,99, 100, 101, 102,
103, 105, 106, 107, 108, 109,
111, 112, 114, 115, 117, 118, 121
vi, 8, 22, 29, 31,50, 55, 143
15, 17, 18, 112
9, 10,29,36,37,38,50,51,52
10,52,53,63, 101, 112, 117
4, 26, 34, 37, 44, 52, 88, 89, 94,
100, 119
1
viii, 10,50,51,52,55,56,57,59,
61,69,70, 106, 112, 122, 124
See National Environmental
Policy Act
43
36, 43, 50, 53, 92
27, 35, 37, 38, 44, 56
40,43,50,53, 100, 101
50, 53, 55, 56
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Acronyms and Abbreviations
Corps U.S. Army Corps of Engineers
CATEX Categorical Exclusion
CEQ Council on Environmental Quality
DEIS Draft Environmental Impact Statement
EA Environmental Assessment
EID Environmental Information Document
EIS Environmental Impact Statement
EPA U.S. Environmental Protection Agency
ESA Endangered Species Act
FEIS Final Environmental Impact Statement
FEMA Federal Emergency Management Agency
FONSI Finding of No Significant Impact
USFWS U.S. Fish and Wildlife Service
FY Fiscal Year
NEPA National Environmental Policy Act
NMFS U.S. National Marine Fisheries Service
NOA Notice of Availability
NOI Notice of Intent
NPDES National Pollutant Discharge Elimination System
NRCS Natural Resource Conservation Service
NRHP National Register of Historic Places
PO Project Officer
ROD Record of Decision
SHPO State Historic Preservation Office
SAAP Special Appropriations Act Project
STAG State and Tribal Assistance Grants
USGS U.S. Geological Survey
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Glossary of Terms
Administrative Action: A signed decision by a responsible official resulting in an
award, approval, notification, cancellation, termination of use, or commitment
of federal funds or property.
Categorical Exclusion (CATEX): Categories of actions that do not individually or
cumulatively have a significant effect on the human environment and which
have been found to have no such effect. See 40 C.F.R. § 1508.4.
Council on Environmental Quality (CEO): Created under the National
Environmental Policy Act of 1969 (NEPA), CEQ oversees the administration of
NEPA government-wide, is responsible for issuing regulations that implement the
procedural provisions of NEPA, and advises the President on environmental
matters.
Cross-Cutter: Laws or regulations for protecting and conserving special
environmental resources with which compliance is required by all federal
programs.
Cumulative Impact: The impact on the environment that results from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (federal or
non-federal) or person undertakes such actions. Cumulative impacts can result
from individually minor but collectively significant actions taking place over time.
See 40 C.F.R. § 1508.7.
Environmental Assessment (EA): A concise public document prepared to
provide sufficient data and analysis to determine whether to prepare an
environmental impact statement (EIS) or finding of no significant impact (FONSI).
See 40 C.F.R. § 1508.9.
Environmental Information Document (EID): A written analysis prepared by the
applicant that provides sufficient information for the Responsible Official to
undertake an environmental review and prepare either an EA and FONSI or an
EIS and record of decision (ROD) for the proposed action. An EID includes basic
project information, including a description of the proposed project, and
evaluates the environmental impacts of the project and alternatives to the
proposed project. See 40 C.F.R. § 6.102(b)(4).
Environmental Impact Statement (EIS): A detailed document prepared to
analyze federal actions that are likely to have a significant impact on the
environment. An EIS provides the public and decision makers with detailed
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information and analyses of the environmental impacts of the proposed project.
See40C.F.R. § 1502.1.
Extraordinary Circumstances: Those circumstances that may cause a significant
environmental effect such that a proposed action that otherwise meets the
requirements of a categorical exclusion may not be categorically excluded.
See40C.F.R. § 6.204.
Finding of No Significant Impact (FONSI): A document briefly providing the
reasons why a proposed action will not have a significant impact on the
environment and for which an EIS will not be prepared.
Major Federal Action: An action by a federal agency that potentially has a
significant impact or an action by a non-federal entity that potentially has a
significant impact and potentially is subject to federal control and responsibility.
The term "major" reinforces but does not have a meaning independent of
"significantly." See 40 C.F.R. §§ 1508.18 and 1508.27.
Mitigation Measures: Measures designed to minimize the impacts of an action
on the environment. Mitigation may include:
Avoiding the impact altogether by not taking a certain action or parts of an
action
Minimizing impacts by limiting the degree or magnitude of the action and its
implementation
Rectifying the impact by repairing, rehabilitating, or restoring the affected
environment
Reducing or eliminating the impact over time by preservation and
maintenance operations during the life of the action
Compensating for the impact by replacing or providing substitute resources
or environments.
See 40 C.F.R. § 1508.20.
National Environmental Policy Act (NEPA): NEPA establishes a national policy for
protection of the environment that encourages productive and enjoyable
harmony between man and his environment. NEPA also promotes efforts to
prevent or eliminate damage to the environment and to enrich the
understanding of the ecological systems and natural resources important to the
Nation. In addition, NEPA establishes the Council on Environmental Quality. See
42U.S.C. §4321.
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Notice of Availability (NOA): A notice placed in the newspaper, Federal
Register, or other appropriate communication channel that announces the
availability of a Draft EIS, Final EIS, or ROD for public review.
Notice of Intent (NOI): A notice placed in the Federal Register, notifying the
public that a federal agency is considering taking a major federal action that
may have a significant impact on the environment and for which an EIS will be
prepared. The NOI describes the proposed action and possible alternatives and
the proposed scoping process (including whether, when, and where scoping
meetings will be held) and provides contact information. See 40 C.F.R. § 1508.22.
Record of Decision (ROD): A public document stating the final decision on a
proposed action for which a final EIS has been prepared. The ROD includes a
brief description of the proposed action and alternatives considered in the EIS,
environmental factors considered, and project impacts; any commitments to
mitigation; an explanation if an environmental preferred alternative was not
selected; and responses to any substantive comments on the final EIS.
Special Appropriations Act Projects (SAAPs): EPA grant projects identified and
funded through EPA's annual appropriations acts. Sometimes these projects are
also referred to as STAG projects because they are contained in the State and
Tribal Assistance Grants section.
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Reference Materials
"Categorical Exclusion Handbook: A Source Book on Preparing Categorical
Exclusion Application Materials for EPA Special Appropriation Act Grant
Projects," United States Environmental Protection Agency, Office of Water,
Region 10, February 2001.
Council on Environmental Quality/Executive Office of the President,
"Regulations for Implementing the Procedural Provisions of the National
Environmental Policy Act," 40 Code of Federal Regulations (C.F.R.) Parts 1500-
1508, 1992.
"Cross-Cutting Federal Authorities: A Handbook on Their Application in the
Clean Water and Drinking Water State Revolving Fund Programs," United States
Environmental Protection Agency, October 2003.
"Environmental Assessment Handbook: A Source Book on Preparing Draft
Environmental Assessment Documents for EPA Special Appropriation Act Grant
Projects," United States Environmental Protection Agency, no date.
"Environmental Information Document (EID) Handbook: Guidance to
Applicants for New Source NPDES Permits," United States Environmental
Protection Agency, Region 6, September 1995.
"Forty Most Asked Questions Concerning CEQ's National Environmental Policy
Regulations," 46 Federal Register No. 55, 18026-18038, March 16, 1981.
Hanlon, James A., Director, Office of Wastewater Management, United States
Environmental Protection Agency, Memorandum "Award of Grants and
Cooperative Agreements for the Special Appropriations Projects and Programs
Authorized by the Agency's FY 2005 Appropriations Act." June 6, 2005.
"Modernizing NEPA Implementation," Report to the Council on Environmental
Quality, NEPA Task Force, September 2003.
"National Environmental Policy Act Review Procedures For EPA Facilities," United
States Environmental Protection Agency, Office of Administration and Resources
Management, May 1998.
"Environmental Protection Agency (EPA) Procedures for Implementing the
Requirements of the National Environmental Policy Act and Assessing the
Environmental Effects Abroad of EPA Actions," 40 C.F.R. Part 6, September 2007.
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"Public Participation in Programs Under the Resource Conservation and
Recovery Act, the Safe Drinking Water Act, and the Clean Water Act," Code of
Federal Regulations, Part 25.
"Special Appropriations Projects Procedures" Workbook, United States
Environmental Protection Agency, Office of Water, Region 4, March 17, 2005.
"The National Environmental Policy Act," 42 United States Code 4321; Amended
by Public Law 94-52, July 3, 1975; Public Law 94-83, August 9, 1975; and Public
Law 97-258, § 4(b), September 13, 1982.
"Understanding the National Environmental Policy Act: A Self-Study Training
Booklet," United States Environmental Protection Agency, Office of
Administration, Facilities and Management and Services Division, June 1996.
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April 2008
List of Appendices
APPENDIX A: The National Environmental Policy Act (NEPA); the Council on
Environmental Quality Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act (40
C.F.R. Parts 1500-1508); and the Council on Environmental Quality
Questions and Answers on the NEPA regulations
APPENDIX B: Environmental Protection Agency (EPA) Procedures for
Implementing the National Environmental Policy Act and Assessing
the Environmental Effects Abroad of EPA Actions (40 C.F.R. Part 6)
APPENDIX C: Cross-Cutter Coordination and Consultation Process
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Appendix A
The National Environmental Policy Act (NEPA); the Council on Environmental
Quality Regulations for Implementing the Procedural Provisions of the National
Environmental Policy Act (40 C.F.R. Parts 1500-1508); and the Council on
Environmental Quality Questions and Answers on the National Environmental
Policy Act Regulations
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The National Environmental Policy Act of 1969 (NEPA)
The National Environmental Policy Act of 1969, as amended (Pub. L. 91-190, 42
U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975,
Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982)
An act to establish a national policy for the environment, to provide for the
establishment of a Council on Environmental Quality, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "National
Environmental Policy Act of 1969."
PURPOSE
Sec. 2 [42 U.S.C. § 4321]. The purposes of this Act are: To declare a national
policy which will encourage productive and enjoyable harmony between man
and his environment; to promote efforts which will prevent or eliminate damage
to the environment and biosphere and stimulate the health and welfare of man;
to enrich the understanding of the ecological systems and natural resources
important to the Nation; and to establish a Council on Environmental Quality.
TITLE I
Congressional Declaration of National Environmental Policy
Sec. 101 [42 U.S.C. §4331].
(a) The Congress, recognizing the profound impact of man's activity on the
interrelations of all components of the natural environment, particularly the
profound influences of population growth, high-density urbanization, industrial
expansion, resource exploitation, and new and expanding technological
advances and recognizing further the critical importance of restoring and
maintaining environmental quality to the overall welfare and development of
man, declares that it is the continuing policy of the Federal Government, in
cooperation with State and local governments, and other concerned public
and private organizations, to use all practicable means and measures, including
financial and technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions under which
man and nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future generations of
Americans.
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(b) In order to carry out the policy set forth in this Act, it is the continuing
responsibility of the Federal Government to use all practicable means,
consistent with other essential considerations of national policy, to improve and
coordinate Federal plans, functions, programs, and resources to the end that
the Nation may-
(1) fulfill the responsibilities of each generation as trustee of the environment for
succeeding generations;
(2) assure for all Americans safe, healthful, productive, and aesthetically and
culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and unintended
consequences;
(4) preserve important historic, cultural, and natural aspects of our national
heritage, and maintain, wherever possible, an environment which supports
diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit
high standards of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum
attainable recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a healthful
environment and that each person has a responsibility to contribute to the
preservation and enhancement of the environment.
Sec. 102 [42 U.S.C. § 4332]. The Congress authorizes and directs that, to the
fullest extent possible:
(1) the policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth in this
Act, and (2) all agencies of the Federal Government shall -
(A) utilize a systematic, interdisciplinary approach which will insure the
integrated use of the natural and social sciences and the environmental design
arts in planning and in decision-making which may have an impact on man's
environment;
(B) identify and develop methods and procedures, in consultation with the
Council on Environmental Quality established by title II of this Act, which will
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insure that presently unquantified environmental amenities and values may be
given appropriate consideration in decision-making along with economic and
technical considerations;
(C) include in every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on -
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the
proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and
the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be
involved in the proposed action should it be implemented. Prior to making any
detailed statement, the responsible Federal official shall consult with and obtain
the comments of any Federal agency which has jurisdiction by law or special
expertise with respect to any environmental impact involved. Copies of such
statement and the comments and views of the appropriate Federal, State, and
local agencies, which are authorized to develop and enforce environmental
standards, shall be made available to the President, the Council on
Environmental Quality and to the public as provided by § 552 of title 5, United
States Code, and shall accompany the proposal through the existing agency
review processes:
(D) Any detailed statement required under subparagraph (C) after January 1,
1970, for any major Federal action funded under a program of grants to States
shall not be deemed to be legally insufficient solely by reason of having been
prepared by a State agency or official, if:
(i) the State agency or official has statewide jurisdiction and has the
responsibility for such action,
(ii) the responsible Federal official furnishes guidance and participates in such
preparation,
(iii) the responsible Federal official independently evaluates such statement
prior to its approval and adoption, and
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(iv) after January 1, 1976, the responsible Federal official provides early
notification to, and solicits the views of, any other State or any Federal land
management entity of any action or any alternative thereto which may have
significant impacts upon such State or affected Federal land management
entity and, if there is any disagreement on such impacts, prepares a written
assessment of such impacts and views for incorporation into such detailed
statement.
The procedures in this subparagraph shall not relieve the Federal official of his
responsibilities for the scope, objectivity, and content of the entire statement or
of any other responsibility under this Act; and further, this subparagraph does not
affect the legal sufficiency of statements prepared by State agencies with less
than statewide jurisdiction.
(E) study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources;
(F) recognize the worldwide and long-range character of environmental
problems and, where consistent with the foreign policy of the United States, lend
appropriate support to initiatives, resolutions, and programs designed to
maximize international cooperation in anticipating and preventing a decline in
the quality of mankind's world environment;
(G) make available to States, counties, municipalities, institutions, and
individuals, advice and information useful in restoring, maintaining, and
enhancing the quality of the environment;
(H) initiate and utilize ecological information in the planning and development
of resource-oriented projects; and
(I) assist the Council on Environmental Quality established by title II of this Act.
Sec. 103 [42 U.S.C. § 4333]. All agencies of the Federal Government shall review
their present statutory authority, administrative regulations, and current policies
and procedures for the purpose of determining whether there are any
deficiencies or inconsistencies therein which prohibit full compliance with the
purposes and provisions of this Act and shall propose to the President not later
than July 1, 1971, such measures as may be necessary to bring their authority
and policies into conformity with the intent, purposes, and procedures set forth
in this Act.
Sec. 104 [42 U.S.C. § 4334]. Nothing in § 102 or 103 shall in any way affect the
specific statutory obligations of any Federal agency (1) to comply with criteria or
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standards of environmental quality, (2) to coordinate or consult with any other
Federal or State agency, or (3) to act, or refrain from acting contingent upon
the recommendations or certification of any other Federal or State agency.
Sec. 105 [42 U.S.C. § 433]. The policies and goals set forth in this Act are
supplementary to those set forth in existing authorizations of Federal agencies.
TITLE II
Council on Environmental Quality
Sec. 201 [42 U.S.C. § 4341]. The President shall transmit to the Congress annually
beginning July 1, 1970, an Environmental Quality Report (hereinafter referred to
as the "report") which shall set forth (1) the status and condition of the major
natural, manmade, or altered environmental classes of the Nation, including,
but not limited to, the air, the aquatic, including marine, estuarine, and fresh
water, and the terrestrial environment, including, but not limited to, the forest
dryland, wetland, range, urban, suburban, and rural environment; (2) current
and foreseeable trends in the quality, management and utilization of such
environment and the effects of those trends on the social, economic, and other
requirements of the Nation; (3) the adequacy of available natural resources for
fulfilling human and economic requirements of the Nation in the light of
expected population pressures; (4) a review of the programs and activities
(including regulatory activities) of the Federal Government, the State and local
governments, and nongovernmental entities or individuals, with particular
reference to their effect on the environment and on the conservation,
development and utilization of natural resources; and (5) a program for
remedying the deficiencies of existing programs and activities, together with
recommendations for legislation.
Sec. 202 [42 U.S.C. § 4342]. There is created in the Executive Office of the
President a Council on Environmental Quality (hereinafter referred to as the
"Council"). The Council shall be composed of three members who shall be
appointed by the President to serve at his pleasure, by and with the advice and
consent of the Senate. The President shall designate one of the members of the
Council to serve as Chairman. Each member shall be a person who, as a result
of his training, experience, and attainments, is exceptionally well qualified to
analyze and interpret environmental trends and information of all kinds; to
appraise programs and activities of the Federal Government in the light of the
policy set forth in title I of this Act; to be conscious of and responsive to the
scientific, economic, social, aesthetic, and cultural needs and interests of the
Nation; and to formulate and recommend national policies to promote the
improvement of the quality of the environment.
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Sec. 203 [42 U.S.C. § 4343].
(a) The Council may employ such officers and employees as may be necessary
to carry out its functions under this Act. In addition, the Council may employ and
fix the compensation of such experts and consultants as may be necessary for
the carrying out of its functions under this Act, in accordance with § 3109 of title
5, United States Code (but without regard to the last sentence thereof).
(b) Notwithstanding § 3679(b) of the Revised Statutes (31 U.S.C. § 665(b)), the
Council may accept and employ voluntary and uncompensated services in
furtherance of the purposes of the Council.
Sec. 204 [42 U.S.C. § 4344]. It shall be the duty and function of the Council: (1)
to assist and advise the President in the preparation of the Environmental Quality
Report required by § 201;
(2) to gather timely and authoritative information concerning the conditions
and trends in the quality of the environment both current and prospective, to
analyze and interpret such information for the purpose of determining whether
such conditions and trends are interfering, or are likely to interfere, with the
achievement of the policy set forth in title I of this Act, and to compile and
submit to the President studies relating to such conditions and trends;
(3) to review and appraise the various programs and activities of the Federal
Government in the light of the policy set forth in title I of this Act for the purpose
of determining the extent to which such programs and activities are contributing
to the achievement of such policy, and to make recommendations to the
President with respect thereto;
(4) to develop and recommend to the President national policies to foster and
promote the improvement of environmental quality to meet the conservation,
social, economic, health, and other requirements and goals of the Nation;
(5) to conduct investigations, studies, surveys, research, and analyses relating to
ecological systems and environmental quality;
(6) to document and define changes in the natural environment, including the
plant and animal systems, and to accumulate necessary data and other
information for a continuing analysis of these changes or trends and an
interpretation of their underlying causes;
(7) to report at least once each year to the President on the state and
condition of the environment; and
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(8) to make and furnish such studies, reports thereon, and recommendations
with respect to matters of policy and legislation as the President may request.
Sec. 205 [42 U.S.C. § 4345]. In exercising its powers, functions, and duties under
this Act, the Council shall -
(1) consult with the Citizens' Advisory Committee on Environmental Quality
established by Executive Order No. 11472, dated May 29, 1969, and with such
representatives of science, industry, agriculture, labor, conservation
organizations, State and local governments, and other groups, as it deems
advisable; and
(2) utilize, to the fullest extent possible, the services, facilities, and information
(including statistical information) of public and private agencies and
organizations, and individuals, in order that duplication of effort and expense
may be avoided, thus assuring that the Council's activities will not unnecessarily
overlap or conflict with similar activities authorized by law and performed by
established agencies.
Sec. 206 [42 U.S.C. § 4346]. Members of the Council shall serve full time and the
Chairman of the Council shall be compensated at the rate provided for Level II
of the Executive Schedule Pay Rates (5 U.S.C. § 5313). The other members of the
Council shall be compensated at the rate provided for Level IV of the Executive
Schedule Pay Rates (5 U.S.C. § 5315).
Sec. 207 [42 U.S.C. § 4346a]. The Council may accept reimbursements from any
private nonprofit organization or from any department, agency, or
instrumentality of the Federal Government, any State, or local government, for
the reasonable travel expenses incurred by an officer or employee of the
Council in connection with his attendance at any conference, seminar, or
similar meeting conducted for the benefit of the Council.
Sec. 208 [42 U.S.C. § 4346b]. The Council may make expenditures in support of
its international activities, including expenditures for: (1) international travel; (2)
activities in implementation of international agreements; and (3) the support of
international exchange programs in the United States and in foreign countries.
Sec. 209 [42 U.S.C. § 4347]. There are authorized to be appropriated to carry out
the provisions of this Act not to exceed $300,000 for fiscal year 1970, $700,000 for
fiscal year 1971, and $1,000,000 for each fiscal year thereafter.
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Final 66 EPA Publication No. 315-K-08-001
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Council on Environmental Quality Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act
(40 C.F.R. Parts 1500-1508)
PART 1500--PURPOSE, POLICY, AND MANDATE
Sec. 1500.1 Purpose.
(a) The National Environmental Policy Act (NEPA) is our basic national charter
for protection of the environment. It establishes policy, sets goals (§ 101), and
provides means (§ 102) for carrying out the policy. Sec. 102(2) contains "action-
forcing" provisions to make sure that federal agencies act according to the
letter and spirit of the Act. The regulations that follow implement § 102(2). Their
purpose is to tell federal agencies what they must do to comply with the
procedures and achieve the goals of the Act. The President, the federal
agencies, and the courts share responsibility for enforcing the Act so as to
achieve the substantive requirements of § 101.
(b) NEPA procedures must insure that environmental information is available to
public officials and citizens before decisions are made and before actions are
taken. The information must be of high quality. Accurate scientific analysis,
expert agency comments, and public scrutiny are essential to implementing
NEPA. Most important, NEPA documents must concentrate on the issues that
are truly significant to the action in question, rather than amassing needless
detail.
(c) Ultimately, of course, it is not better documents but better decisions that
count. NEPA's purpose is not to generate paperwork - even excellent
paperwork - but to foster excellent action. The NEPA process is intended to help
public officials make decisions that are based on understanding of
environmental consequences, and take actions that protect, restore, and
enhance the environment. These regulations provide the direction to achieve
this purpose.
Sec. 1500.2 Policy.
Federal agencies shall to the fullest extent possible:
(a) Interpret and administer the policies, regulations, and public laws of the
United States in accordance with the policies set forth in the Act and in these
regulations.
(b) Implement procedures to make the NEPA process more useful to decision
makers and the public; to reduce paperwork and the accumulation of
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extraneous background data; and to emphasize real environmental issues and
alternatives. Environmental impact statements shall be concise, clear, and to
the point, and shall be supported by evidence that agencies have made the
necessary environmental analyses.
(c) Integrate the requirements of NEPA with other planning and environmental
review procedures required by law or by agency practice so that all such
procedures run concurrently rather than consecutively.
(d) Encourage and facilitate public involvement in decisions which affect the
quality of the human environment.
(e) Use the NEPA process to identify and assess the reasonable alternatives to
proposed actions that will avoid or minimize adverse effects of these actions
upon the quality of the human environment.
(f) Use all practicable means, consistent with the requirements of the Act and
other essential considerations of national policy, to restore and enhance the
quality of the human environment and avoid or minimize any possible adverse
effects of their actions upon the quality of the human environment.
Sec. 1500.3 Mandate.
Parts 1500 through 1508 of this title provide regulations applicable to and
binding on all Federal agencies for implementing the procedural provisions of
the National Environmental Policy Act of 1969, as amended (Pub. L. 91 -190, 42
U.S.C. 4321 et seq.) (NEPA or the Act) except where compliance would be
inconsistent with other statutory requirements. These regulations are issued
pursuant to NEPA, the Environmental Quality Improvement Act of 1970, as
amended (42 U.S.C. 4371 et seq.) § 309 of the Clean Air Act, as amended (42
U.S.C. 7609) and Executive Order 11514, Protection and Enhancement of
Environmental Quality (March 5, 1970, as amended by Executive Order 11991,
May 24, 1977). These regulations, unlike the predecessor guidelines, are not
confined to sec. 102(2)(C) (environmental impact statements). The regulations
apply to the whole of § 102(2). The provisions of the Act and of these
regulations must be read together as a whole in order to comply with the spirit
and letter of the law. It is the Council's intention that judicial review of agency
compliance with these regulations not occur before an agency has filed the
final environmental impact statement, or has made a final finding of no
significant impact (when such a finding will result in action affecting the
environment), or takes action that will result in irreparable injury. Furthermore, it
is the Council's intention that any trivial violation of these regulations not give rise
to any independent cause of action.
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Sec. 1500.4 Reducing paperwork.
Agencies shall reduce excessive paperwork by:
(a) Reducing the length of environmental impact statements (Sec. 1502.2(c)),
by means such as setting appropriate page limits (Sees. 1501.7(b)(l) and
1502.7).
(b) Preparing analytic rather than encyclopedic environmental impact
statements (Sec. 1502.2(a)).
(c) Discussing only briefly issues other than significant ones (Sec. 1502.2(b)).
(d) Writing environmental impact statements in plain language (Sec. 1502.8).
(e) Following a clear format for environmental impact statements (Sec.
1502.10).
(f) Emphasizing the portions of the environmental impact statement that are
useful to decision makers and the public (Sees. 1502.14 and 1502.15) and
reducing emphasis on background material (Sec. 1502.16).
(g) Using the scoping process, not only to identify significant environmental
issues deserving of study, but also to deemphasize insignificant issues, narrowing
the scope of the environmental impact statement process accordingly (Sec.
1501.7).
(h) Summarizing the environmental impact statement (Sec. 1502.12) and
circulating the summary instead of the entire environmental impact statement if
the latter is unusually long (Sec. 1502.19).
(i) Using program, policy, or plan environmental impact statements and tiering
from statements of broad scope to those of narrower scope, to eliminate
repetitive discussions of the same issues (Sees. 1502.4 and 1502.20).
(j) Incorporating by reference (Sec. 1502.21).
(k) Integrating NEPA requirements with other environmental review and
consultation requirements (Sec. 1502.25).
(I) Requiring comments to be as specific as possible (Sec. 1503.3).
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(m) Attaching and circulating only changes to the draft environmental impact
statement, rather than rewriting and circulating the entire statement when
changes are minor (Sec. 1503.4(c)).
(n) Eliminating duplication with State and local procedures, by providing for
joint preparation (Sec. 1506.2), and with other Federal procedures, by providing
that an agency may adopt appropriate environmental documents prepared by
another agency (Sec. 1506.3).
(o) Combining environmental documents with other documents (Sec. 1506.4).
(p) Using categorical exclusions to define categories of actions which do not
individually or cumulatively have a significant effect on the human environment
and which are therefore exempt from requirements to prepare an
environmental impact statement (Sec. 1508.4).
(q) Using a finding of no significant impact when an action not otherwise
excluded will not have a significant effect on the human environment and is
therefore exempt from requirements to prepare an environmental impact
statement (Sec. 1508.13).
Sec. 1500.5 Reducing delay.
Agencies shall reduce delay by:
(a) Integrating the NEPA process into early planning (Sec. 1501.2).
(b) Emphasizing interagency cooperation before the environmental impact
statement is prepared, rather than submission of adversary comments on a
completed document (Sec. 1501.6).
(c) Insuring the swift and fair resolution of lead agency disputes (Sec. 1501.5).
(d) Using the scoping process for an early identification of what are and what
are not the real issues (Sec. 1501.7).
(e) Establishing appropriate time limits for the environmental impact statement
process (Sees. 1501.7(b)(2) and 1501.8).
(f) Preparing environmental impact statements early in the process (Sec.
1502.5).
(g) Integrating NEPA requirements with other environmental review and
consultation requirements (Sec. 1502.25).
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(h) Eliminating duplication with State and local procedures by providing for joint
preparation (Sec. 1506.2) and with other Federal procedures by providing that
an agency may adopt appropriate environmental documents prepared by
another agency (Sec. 1506.3).
(i) Combining environmental documents with other documents (Sec. 1506.4).
(j) Using accelerated procedures for proposals for legislation (Sec. 1506.8).
(k) Using categorical exclusions to define categories of actions which do not
individually or cumulatively have a significant effect on the human environment
(Sec. 1508.4) and which are therefore exempt from requirements to prepare an
environmental impact statement.
(I) Using a finding of no significant impact when an action not otherwise
excluded will not have a significant effect on the human environment (Sec.
1508.13) and is therefore exempt from requirements to prepare an
environmental impact statement.
Sec. 1500.6 Agency authority.
Each agency shall interpret the provisions of the Act as a supplement to its
existing authority and as a mandate to view traditional policies and missions in
the light of the Act's national environmental objectives. Agencies shall review
their policies, procedures, and regulations accordingly and revise them as
necessary to insure full compliance with the purposes and provisions of the Act.
The phrase "to the fullest extent possible" in § 102 means that each agency of
the Federal Government shall comply with that section unless existing law
applicable to the agency's operations expressly prohibits or makes compliance
impossible.
PART 1501--NEPA AND AGENCY PLANNING
Sec. 1501.1 Purpose.
The purposes of this part include:
(a) Integrating the NEPA process into early planning to insure appropriate
consideration of NEPA's policies and to eliminate delay.
(b) Emphasizing cooperative consultation among agencies before the
environmental impact statement is prepared rather than submission of
adversary comments on a completed document.
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(c) Providing for the swift and fair resolution of lead agency disputes.
(d) Identifying at an early stage the significant environmental issues deserving of
study and deemphasizing insignificant issues, narrowing the scope of the
environmental impact statement accordingly.
(e) Providing a mechanism for putting appropriate time limits on the
environmental impact statement process.
Sec. 1501.2 Apply NEPA early in the process.
Agencies shall integrate the NEPA process with 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. Each
agency shall:
(a) Comply with the mandate of § 102(2) (A) to "utilize a systematic,
interdisciplinary approach which will insure the integrated use of the natural and
social sciences and the environmental design arts in planning and in decision-
making which may have an impact on man's environment," as specified by
Sec. 1507.2.
(b) Identify environmental effects and values in adequate detail so they can be
compared to economic and technical analyses. Environmental documents
and appropriate analyses shall be circulated and reviewed at the same time as
other planning documents.
(c) Study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources as provided by § 102(2)(E) of
the Act.
(d) Provide for cases where actions are planned by private applicants or other
non-Federal entities before Federal involvement so that:
(1) Policies or designated staff are available to advise potential applicants of
studies or other information foreseeably required for later Federal action.
(2) The Federal agency consults early with appropriate State and local
agencies and Indian tribes and with interested private persons and
organizations when its own involvement is reasonably foreseeable.
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(3) The Federal agency commences its NEPA process at the earliest possible
time.
Sec. 1501.3 When to prepare an environmental assessment.
(a) Agencies shall prepare an environmental assessment (Sec. 1508.9) when
necessary under the procedures adopted by individual agencies to supplement
these regulations as described in Sec. 1507.3. An assessment is not necessary if
the agency has decided to prepare an environmental impact statement.
(b) Agencies may prepare an environmental assessment on any action at any
time in order to assist agency planning and decision-making.
Sec. 1501.4 Whether to prepare an environmental impact statement.
In determining whether to prepare an environmental impact statement the
Federal agency shall:
(a) Determine under its procedures supplementing these regulations (described
in Sec. 1507.3) whether the proposal is one which:
(1) Normally requires an environmental impact statement, or
(2) Normally does not require either an environmental impact statement or an
environmental assessment (categorical exclusion).
(b) If the proposed action is not covered by paragraph (a) of this section,
prepare an environmental assessment (Sec. 1508.9). The agency shall involve
environmental agencies, applicants, and the public, to the extent practicable,
in preparing assessments required by Sec. 1508.9(a)(l).
(c) Based on the environmental assessment make its determination whether to
prepare an environmental impact statement.
(d) Commence the scoping process (Sec. 1501.7), if the agency will prepare an
environmental impact statement.
(e) Prepare a finding of no significant impact (Sec. 1508.13), if the agency
determines on the basis of the environmental assessment not to prepare a
statement.
(1) The agency shall make the finding of no significant impact available to the
affected public as specified in Sec. 1506.6.
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(2) In certain limited circumstances, which the agency may cover in its
procedures under Sec. 1507.3, the agency shall make the finding of no
significant impact available for public review (including State and area wide
clearinghouses) for 30 days before the agency makes its final determination
whether to prepare an environmental impact statement and before the action
may begin. The circumstances are:
(i) The proposed action is, or is closely similar to, one which normally requires the
preparation of an environmental impact statement under the procedures
adopted by the agency pursuant to Sec. 1507.3, or
(ii) The nature of the proposed action is one without precedent.
Sec. 1501.5 Lead agencies.
(a) A lead agency shall supervise the preparation of an environmental impact
statement if more than one Federal agency either:
(1) Proposes or is involved in the same action; or
(2) Is involved in a group of actions directly related to each other because of
their functional interdependence or geographical proximity.
(b) Federal, State, or local agencies, including at least one Federal agency,
may act as joint lead agencies to prepare an environmental impact statement
(Sec. 1506.2).
(c) If an action falls within the provisions of paragraph (a) of this section the
potential lead agencies shall determine by letter or memorandum which
agency shall be the lead agency and which shall be cooperating agencies.
The agencies shall resolve the lead agency question so as not to cause delay. If
there is disagreement among the agencies, the following factors (which are
listed in order of descending importance) shall determine lead agency
designation:
(1) Magnitude of agency's involvement.
(2) Project approval/disapproval authority.
(3) Expertise concerning the action's environmental effects.
(4) Duration of agency's involvement.
(5) Sequence of agency's involvement.
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(d) Any Federal agency, or any State or local agency or private person
substantially affected by the absence of lead agency designation, may make a
written request to the potential lead agencies that a lead agency be
designated.
(e) If Federal agencies are unable to agree on which agency will be the lead
agency or if the procedure described in paragraph (c) of this section has not
resulted within 45 days in a lead agency designation, any of the agencies or
persons concerned may file a request with the Council asking it to determine
which Federal agency shall be the lead agency.
A copy of the request shall be transmitted to each potential lead agency. The
request shall consist of:
(1) A precise description of the nature and extent of the proposed action.
(2) A detailed statement of why each potential lead agency should or should
not be the lead agency under the criteria specified in paragraph (c) of this
section.
(f) A response may be filed by any potential lead agency concerned within 20
days after a request is filed with the Council. The Council shall determine as
soon as possible but not later than 20 days after receiving the request and all
responses to it which Federal agency shall be the lead agency and which other
Federal agencies shall be cooperating agencies.
Sec. 1501.6 Cooperating agencies.
The purpose of this section is to emphasize agency cooperation early in the
NEPA process. Upon request of the lead agency, any other Federal agency
which has jurisdiction by law shall be a cooperating agency. In addition any
other Federal agency which has special expertise with respect to any
environmental issue, which should be addressed in the statement may be a
cooperating agency upon request of the lead agency. An agency may
request the lead agency to designate it a cooperating agency.
(a) The lead agency shall:
(1) Request the participation of each cooperating agency in the NEPA process
at the earliest possible time.
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(2) Use the environmental analysis and proposals of cooperating agencies with
jurisdiction by law or special expertise, to the maximum extent possible
consistent with its responsibility as lead agency.
(3) Meet with a cooperating agency at the letter's request.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest possible time.
(2) Participate in the scoping process (described below in Sec. 1501.7).
(3) Assume on request of the lead agency responsibility for developing
information and preparing environmental analyses including portions of the
environmental impact statement concerning which the cooperating agency
has special expertise.
(4) Make available staff support at the lead agency's request to enhance the
latter's interdisciplinary capability.
(5) Normally use its own funds. The lead agency shall, to the extent available
funds permit, fund those major activities or analyses it requests from cooperating
agencies. Potential lead agencies shall include such funding requirements in
their budget requests.
(c) A cooperating agency may in response to a lead agency's request for
assistance in preparing the environmental impact statement (described in
paragraph (b)(3), (4), or (5) of this section) reply that other program
commitments preclude any involvement or the degree of involvement
requested in the action that is the subject of the environmental impact
statement. A copy of this reply shall be submitted to the Council.
Sec. 1501.7 Scoping.
There shall be an early and open process for determining the scope of issues to
be addressed and for identifying the significant issues related to a proposed
action. This process shall be termed scoping. As soon as practicable after its
decision to prepare an environmental impact statement and before the
scoping process the lead agency shall publish a notice of intent (Sec. 1508.22) in
the Federal Register except as provided in Sec. 1507.3(e).
(a) As part of the scoping process the lead agency shall:
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(1) Invite the participation of affected Federal, State, and local agencies, any
affected Indian tribe, the proponent of the action, and other interested persons
(including those who might not be in accord with the action on environmental
grounds), unless there is a limited exception under Sec. 1507.3(c). An agency
may give notice in accordance with Sec. 1506.6.
(2) Determine the scope (Sec. 1508.25) and the significant issues to be analyzed
in depth in the environmental impact statement.
(3) Identify and eliminate from detailed study the issues which are not significant
or which have been covered by prior environmental review (Sec. 1506.3),
narrowing the discussion of these issues in the statement to a brief presentation
of why they will not have a significant effect on the human environment or
providing a reference to their coverage elsewhere.
(4) Allocate assignments for preparation of the environmental impact
statement among the lead and cooperating agencies, with the lead agency
retaining responsibility for the statement.
(5) Indicate any public environmental assessments and other environmental
impact statements which are being or will be prepared that are related to but
are not part of the scope of the impact statement under consideration.
(6) Identify other environmental review and consultation requirements so the
lead and cooperating agencies may prepare other required analyses and
studies concurrently with, and integrated with, the environmental impact
statement as provided in Sec. 1502.25.
(7) Indicate the relationship between the timing of the preparation of
environmental analyses and the agency's tentative planning and decision-
making schedule.
(b) As part of the scoping process the lead agency may:
(1) Set page limits on environmental documents (Sec. 1502.7).
(2) Set time limits (Sec. 1501.8).
(3) Adopt procedures under Sec. 1507.3 to combine its environmental
assessment process with its scoping process.
(4) Hold an early scoping meeting or meetings which may be integrated with
any other early planning meeting the agency has. Such a scoping meeting will
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often be appropriate when the impacts of a particular action are confined to
specific sites.
(c) An agency shall revise the determinations made under paragraphs (a) and
(b) of this section if substantial changes are made later in the proposed action,
or if significant new circumstances or information arise which bear on the
proposal or its impacts.
Sec. 1501.8 Time limits.
Although the Council has decided that prescribed universal time limits for the
entire NEPA process are too inflexible, Federal agencies are encouraged to set
time limits appropriate to individual actions (consistent with the time intervals
required by Sec. 1506.10). When multiple agencies are involved the reference
to agency below means lead agency.
(a) The agency shall set time limits if an applicant for the proposed action
requests them: Provided, that the limits are consistent with the purposes of NEPA
and other essential considerations of national policy.
(b) The agency may:
(1) Consider the following factors in determining time limits:
(i) Potential for environmental harm.
(ii) Size of the proposed action.
(iii) State of the art of analytic techniques.
(iv) Degree of public need for the proposed action, including the
consequences of delay.
(v) Number of persons and agencies affected.
(vi) Degree to which relevant information is known and if not known the time
required for obtaining it.
(vii) Degree to which the action is controversial.
/iii) Other time limits imposed on the agency by law, regulations, or executive
order.
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(2) Set overall time limits or limits for each constituent part of the NEPA process,
which may include:
(i) Decision on whether to prepare an environmental impact statement (if not
already decided).
(ii) Determination of the scope of the environmental impact statement.
(iii) Preparation of the draft environmental impact statement.
(iv) Review of any comments on the draft environmental impact statement
from the public and agencies.
(v) Preparation of the final environmental impact statement.
(vi) Review of any comments on the final environmental impact statement.
(vii) Decision on the action based in part on the environmental impact
statement.
(3) Designate a person (such as the project manager or a person in the
agency's office with NEPA responsibilities) to expedite the NEPA process.
(c) State or local agencies or members of the public may request a Federal
Agency to set time limits.
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec. 1502.1 Purpose.
The primary purpose of an environmental impact statement is to serve as an
action-forcing device to insure that the policies and goals defined in the Act are
infused into the ongoing programs and actions of the Federal Government. It
shall provide full and fair discussion of significant environmental impacts and
shall inform decision makers and the public of the reasonable alternatives which
would avoid or minimize adverse impacts or enhance the quality of the human
environment. Agencies shall focus on significant environmental issues and
alternatives and shall reduce paperwork and the accumulation of extraneous
background data. Statements shall be concise, clear, and to the point, and
shall be supported by evidence that the agency has made the necessary
environmental analyses. An environmental impact statement is more than a
disclosure document. It shall be used by Federal officials in conjunction with
other relevant material to plan actions and make decisions.
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Sec. 1502.2 Implementation.
To achieve the purposes set forth in Sec. 1502.1 agencies shall prepare
environmental impact statements in the following manner:
(a) Environmental impact statements shall be analytic rather than
encyclopedic.
(b) Impacts shall be discussed in proportion to their significance. There shall be
only brief discussion of other than significant issues. As in a finding of no
significant impact, there should be only enough discussion to show why more
study is not warranted.
(c) Environmental impact statements shall be kept concise and shall be no
longer than absolutely necessary to comply with NEPA and with these
regulations. Length should vary first with potential environmental problems and
then with project size.
(d) Environmental impact statements shall state how alternatives considered in
it and decisions based on it will or will not achieve the requirements of sections
101 and 102(1) of the Act and other environmental laws and policies.
(e) The range of alternatives discussed in environmental impact statements shall
encompass those to be considered by the ultimate agency decision maker.
(f) Agencies shall not commit resources prejudicing selection of alternatives
before making a final decision (Sec. 1506.1).
(g) Environmental impact statements shall serve as the means of assessing the
environmental impact of proposed agency actions, rather than justifying
decisions already made.
Sec. 1502.3 Statutory requirements for statements.
As required by sec. 102(2) (C) of NEPA environmental impact statements (Sec.
1508.11) are to be included in every recommendation or report.
On proposals (Sec. 1508.23).
For legislation and (Sec. 1508.17).
Other major Federal actions (Sec. 1508.18).
Significantly (Sec. 1508.27).
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Affecting (Sees. 1508.3, 1508.8).
The quality of the human environment (Sec. 1508.14).
Sec. 1502.4 Major Federal actions requiring the preparation of environmental
impact statements.
(a) Agencies shall make sure the proposal which is the subject of an
environmental impact statement is properly defined. Agencies shall use the
criteria for scope (Sec. 1508.25) to determine which proposal(s) shall be the
subject of a particular statement. Proposals or parts of proposals which are
related to each other closely enough to be, in effect, a single course of action
shall be evaluated in a single impact statement.
(b) Environmental impact statements may be prepared, and are sometimes
required, for broad Federal actions such as the adoption of new agency
programs or regulations (Sec. 1508.18). Agencies shall prepare statements on
broad actions so that they are relevant to policy and are timed to coincide with
meaningful points in agency planning and decision-making.
(c) When preparing statements on broad actions (including proposals by more
than one agency), agencies may find it useful to evaluate the proposal(s) in
one of the following ways:
(1) Geographically, including actions occurring in the same general location,
such as body of water, region, or metropolitan area.
(2) Generically, including actions which have relevant similarities, such as
common timing, impacts, alternatives, methods of implementation, media, or
subject matter.
(3) By stage of technological development including federal or federally
assisted research, development or demonstration programs for new
technologies which, if applied, could significantly affect the quality of the
human environment. Statements shall be prepared on such programs and shall
be available before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development or
restrict later alternatives.
(d) Agencies shall as appropriate employ scoping (Sec. 1501.7), tiering (Sec.
1502.20), and other methods listed in Sees. 1500.4 and 1500.5 to relate broad
and narrow actions and to avoid duplication and delay.
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Sec. 1502.5 Timing.
An agency shall commence preparation of an environmental impact statement
as close as possible to the time the agency is developing or is presented with a
proposal (Sec. 1508.23) so that preparation can be completed in time for the
final statement to be included in any recommendation or report on the
proposal. The statement shall be prepared early enough so that it can serve
practically as an important contribution to the decision-making process and will
not be used to rationalize or justify decisions already made (Sees. 1500.2(c),
1501.2, and 1502.2). Forinstance:
(a) For projects directly undertaken by Federal agencies the environmental
impact statement shall be prepared at the feasibility analysis (go-no go) stage
and may be supplemented at a later stage if necessary.
(b) For applications to the agency appropriate environmental assessments or
statements shall be commenced no later than immediately after the
application is received. Federal agencies are encouraged to begin
preparation of such assessments or statements earlier, preferably jointly with
applicable State or local agencies.
(c) For adjudication, the final environmental impact statement shall normally
precede the final staff recommendation and that portion of the public hearing
related to the impact study. In appropriate circumstances the statement may
follow preliminary hearings designed to gather information for use in the
statements.
(d) For informal rulemaking the draft environmental impact statement shall
normally accompany the proposed rule.
Sec. 1502.6 Interdisciplinary preparation.
Environmental impact statements shall be prepared using an inter- disciplinary
approach which will insure the integrated use of the natural and social sciences
and the environmental design arts (§ 102(2) (A) of the Act). The disciplines of the
preparers shall be appropriate to the scope and issues identified in the scoping
process (Sec. 1501.7).
Sec. 1502.7 Page limits.
The text of final environmental impact statements (e.g., paragraphs (d) through
(g) of Sec. 1502.10) shall normally be less than 150 pages and for proposals of
unusual scope or complexity shall normally be less than 300 pages.
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Sec. 1502.8 Writing.
Environmental impact statements shall be written in plain language and may
use appropriate graphics so that decision makers and the public can readily
understand them. Agencies should employ writers of clear prose or editors to
write, review, or edit statements, which will be based upon the analysis and
supporting data from the natural and social sciences and the environmental
design arts.
Sec. 1502.9 Draft, final, and supplemental statements.
Except for proposals for legislation as provided in Sec. 1506.8 environmental
impact statements shall be prepared in two stages and may be supplemented.
(a) Draft environmental impact statements shall be prepared in accordance
with the scope decided upon in the scoping process. The lead agency shall
work with the cooperating agencies and shall obtain comments as required in
Part 1503 of this chapter. The draft statement must fulfill and satisfy to the fullest
extent possible the requirements established for final statements in section
102(2) (C) of the Act. If a draft statement is so inadequate as to preclude
meaningful analysis, the agency shall prepare and circulate a revised draft of
the appropriate portion. The agency shall make every effort to disclose and
discuss at appropriate points in the draft statement all major points of view on
the environmental impacts of the alternatives including the proposed action.
(b) Final environmental impact statements shall respond to comments as
required in Part 1503 of this chapter. The agency shall discuss at appropriate
points in the final statement any responsible opposing view which was not
adequately discussed in the draft statement and shall indicate the agency's
response to the issues raised.
(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact
statements if:
(i) The agency makes substantial changes in the proposed action that are
relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts.
(2) May also prepare supplements when the agency determines that the
purposes of the Act will be furthered by doing so.
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(3) Shall adopt procedures for introducing a supplement into its formal
administrative record, if such a record exists.
(4) Shall prepare, circulate, and file a supplement to a statement in the same
fashion (exclusive of scoping) as a draft and final statement unless alternative
procedures are approved by the Council.
Sec. 1502.10 Recommended format.
Agencies shall use a format for environmental impact statements which will
encourage good analysis and clear presentation of the alternatives including
the proposed action. The following standard format for environmental impact
statements should be followed unless the agency determines that there is a
compelling reason to do otherwise:
(a) Cover sheet.
(b) Summary.
(c) Table of contents.
(d) Purpose of and need for action.
(e) Alternatives including proposed action (§§ 102(2)(C)(Hi) and 102(2)(E) of the
Act).
(f) Affected environment.
(g) Environmental consequences (especially §§ 102(2)(C)(i), (ii), (iv), and (v) of
the Act).
(h) List of preparers.
(i) List of Agencies, Organizations, and persons to whom copies of the
statement are sent.
(j) Index.
(k) Appendices (if any).
If a different format is used, it shall include paragraphs (a), (b), (c), (h), (i), and
(j), of this section and shall include the substance of paragraphs (d), (e), (f), (g),
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and (k) of this section, as further described in Sees. 1502.11 through 1502.18, in
any appropriate format.
Sec. 1502.11 Cover sheet.
The cover sheet shall not exceed one page. It shall include:
(a) A list of the responsible agencies including the lead agency and any
cooperating agencies.
(b) The title of the proposed action that is the subject of the statement (and if
appropriate the titles of related cooperating agency actions), together with the
State(s) and county(ies) (or other jurisdiction if applicable) where the action is
located.
(c) The name, address, and telephone number of the person at the agency
who can supply further information.
(d) A designation of the statement as a draft, final, or draft or final supplement.
(e) A one paragraph abstract of the statement.
(f) The date by which comments must be received (computed in cooperation
with EPA under Sec. 1506.10).
The information required by this section may be entered on Standard Form 424
(in items 4, 6, 7, 10, and 18).
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary which
adequately and accurately summarizes the statement. The summary shall stress
the major conclusions, areas of controversy (including issues raised by agencies
and the public), and the issues to be resolved (including the choice among
alternatives). The summary will normally not exceed 15 pages.
Sec. 1502.13 Purpose and need.
The statement shall briefly specify the underlying purpose and need to which
the agency is responding in proposing the alternatives including the proposed
action.
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Sec. 1502.14 Alternatives including the proposed action.
This section is the heart of the environmental impact statement. Based on the
information and analysis presented in the sections on the Affected Environment
(Sec. 1502.15) and the Environmental Consequences (Sec. 1502.16), it should
present the environmental impacts of the proposal and the alternatives in
comparative form, thus sharply defining the issues and providing a clear basis for
choice among options by the decision maker and the public. In this section
agencies shall:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and
for alternatives which were eliminated from detailed study, briefly discuss the
reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail
including the proposed action so that reviewers may evaluate their
comparative merits.
(c) Include reasonable alternatives not within the jurisdiction of the lead
agency.
(d) Include the alternative of no action.
(e) Identify the agency's preferred alternative or alternatives, if one or more
exists, in the draft statement and identify such alternative in the final statement
unless another law prohibits the expression of such a preference.
(f) Include appropriate mitigation measures not already included in the
proposed action or alternatives.
Sec. 1502.15 Affected environment.
The environmental impact statement shall succinctly describe the environment
of the area(s) to be affected or created by the alternatives under
consideration. The descriptions shall be no longer than is necessary to
understand the effects of the alternatives. Data and analyses in a statement
shall be commensurate with the importance of the impact, with less important
material summarized, consolidated, or simply referenced. Agencies shall avoid
useless bulk in statements and shall concentrate effort and attention on
important issues. Verbose descriptions of the affected environment are
themselves no measure of the adequacy of an environmental impact
statement.
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Sec. 1502.16 Environmental consequences.
This section forms the scientific and analytic basis for the comparisons under Sec.
1502.14. It shall consolidate the discussions of those elements required by §§
102(2)(C)(i), (ii), (iv),and (v) of NEPA which are within the scope of the
statement and as much of § 102(2) (C) (iii) as is necessary to support the
comparisons. The discussion will include the environmental impacts of the
alternatives including the proposed action, any adverse environmental effects
which cannot be avoided should the proposal be implemented, the relationship
between short-term uses of man's environment and the maintenance and
enhancement of long-term productivity, and any irreversible or irretrievable
commitments of resources which would be involved in the proposal should it be
implemented. This section should not duplicate discussions in Sec. 1502.14. It
shall include discussions of:
(a) Direct effects and their significance (Sec. 1508.8).
(b) Indirect effects and their significance (Sec. 1508.8).
(c) Possible conflicts between the proposed action and the objectives of
Federal, regional, State, and local (and in the case of a reservation, Indian tribe)
land use plans, policies and controls for the area concerned. (See Sec.
1506.2(d).)
(d) The environmental effects of alternatives including the proposed action.
The comparisons under Sec. 1502.14 will be based on this discussion.
(e) Energy requirements and conservation potential of various alternatives and
mitigation measures.
(f) Natural or depletable resource requirements and conservation potential of
various alternatives and mitigation measures.
(g) Urban quality, historic and cultural resources, and the design of the built
environment, including the reuse and conservation potential of various
alternatives and mitigation measures.
(h) Means to mitigate adverse environmental impacts (if not fully covered
under Sec. 1502.14(f)).
Sec. 1502.17 List of preparers.
The environmental impact statement shall list the names, together with their
qualifications (expertise, experience, professional disciplines), of the persons who
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were primarily responsible for preparing the environmental impact statement or
significant background papers, including basic components of the statement
(Sees. 1502.6 and 1502.8). Where possible the persons who are responsible for a
particular analysis, including analyses in background papers, shall be identified.
Normally the list will not exceed two pages.
Sec. 1502.18 Appendix.
If an agency prepares an appendix to an environmental impact statement the
appendix shall:
(a) Consist of material prepared in connection with an environmental impact
statement (as distinct from material which is not so prepared and which is
incorporated by reference (Sec. 1502.21)).
(b) Normally consist of material which substantiates any analysis fundamental to
the impact statement.
(c) Normally be analytic and relevant to the decision to be made.
(d) Be circulated with the environmental impact statement or be readily
available on request.
Sec. 1502.19 Circulation of the environmental impact statement.
Agencies shall circulate the entire draft and final environmental impact
statements except for certain appendices as provided in Sec. 1502.18(d) and
unchanged statements as provided in Sec. 1503.4(c). However, if the statement
is unusually long, the agency may circulate the summary instead, except that
the entire statement shall be furnished to:
(a) Any Federal agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved and any appropriate Federal,
State or local agency authorized to develop and enforce environmental
standards.
(b) The applicant, if any.
(c) Any person, organization, or agency requesting the entire environmental
impact statement.
(d) In the case of a final environmental impact statement any person,
organization, or agency which submitted substantive comments on the draft.
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If the agency circulates the summary and thereafter receives a timely request
for the entire statement and for additional time to comment, the time for that
requestor only shall be extended by at least 15 days beyond the minimum
period.
Sec. 1502.20 Tiering.
Agencies are encouraged to tier their environmental impact statements to
eliminate repetitive discussions of the same issues and to focus on the actual
issues ripe for decision at each level of environmental review (Sec. 1508.28).
Whenever a broad environmental impact statement has been prepared (such
as a program or policy statement) and a subsequent statement or
environmental assessment is then prepared on an action included within the
entire program or policy (such as a site specific action) the subsequent
statement or environmental assessment need only summarize the issues
discussed in the broader statement and incorporate discussions from the
broader statement by reference and shall concentrate on the issues specific to
the subsequent action. The subsequent document shall state where the earlier
document is available. Tiering may also be appropriate for different stages of
actions. (§ 1508.28).
Sec. 1502.21 Incorporation by reference.
Agencies shall incorporate material into an environmental impact statement by
reference when the effect will be to cut down on bulk without impeding agency
and public review of the action. The incorporated material shall be cited in the
statement and its content briefly described. No material may be incorporated
by reference unless it is reasonably available for inspection by potentially
interested persons within the time allowed for comment. Material based on
proprietary data which is itself not available for review and comment shall not
be incorporated by reference.
Sec. 1502.22 Incomplete or unavailable information.
When an agency is evaluating reasonably foreseeable significant adverse
effects on the human environment in an environmental impact statement and
there is incomplete or unavailable information, the agency shall always make
clear that such information is lacking.
(a) If the incomplete information relevant to reasonably foreseeable significant
adverse impacts is essential to a reasoned choice among alternatives and the
overall costs of obtaining it are not exorbitant, the agency shall include the
information in the environmental impact statement.
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(b) If the information relevant to reasonably foreseeable significant adverse
impacts cannot be obtained because the overall costs of obtaining it are
exorbitant or the means to obtain it are not known, the agency shall include
within the environmental impact statement: (1) A statement that such
information is incomplete or unavailable; (2) a statement of the relevance of the
incomplete or unavailable information to evaluating reasonably foreseeable
significant adverse impacts on the human environment; (3) a summary of
existing credible scientific evidence which is relevant to evaluating the
reasonably foreseeable significant adverse impacts on the human environment,
and (4) the agency's evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the scientific
community. For the purposes of this section, "reasonably foreseeable" includes
impacts which have catastrophic consequences, even if their probability of
occurrence is low, provided that the analysis of the impacts is supported by
credible scientific evidence, is not based on pure conjecture, and is within the
rule of reason.
(c) The amended regulation will be applicable to all environmental impact
statements for which a Notice of Intent (40 C.F.R. 1508.22) is published in the
Federal Register on or after May 27, 1986. For environmental impact statements
in progress, agencies may choose to comply with the requirements of either the
original or amended regulation.
Sec. 1502.23 Cost-benefit analysis.
If a cost-benefit analysis relevant to the choice among environmentally different
alternatives is being considered for the proposed action, it shall be incorporated
by reference or appended to the statement as an aid in evaluating the
environmental consequences. To assess the adequacy of compliance with §
102(2)(B) of the Act the statement shall, when a cost-benefit analysis is
prepared, discuss the relationship between that analysis and any analyses of
unquantified environmental impacts, values, and amenities. For purposes of
complying with the Act, the weighing of the merits and drawbacks of the
various alternatives need not be displayed in a monetary cost-benefit analysis
and should not be when there are important qualitative considerations. In any
event, an environmental impact statement should at least indicate those
considerations, including factors not related to environmental quality, which are
likely to be relevant and important to a decision.
Sec. 1502.24 Methodology and scientific accuracy.
Agencies shall insure the professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements. They shall identify
any methodologies used and shall make explicit reference by footnote to the
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scientific and other sources relied upon for conclusions in the statement. An
agency may place discussion of methodology in an appendix.
Sec. 1502.25 Environmental review and consultation requirements.
(a) To the fullest extent possible, agencies shall prepare draft environmental
impact statements concurrently with and integrated with environmental impact
analyses and related surveys and studies required by the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic Preservation Act of
1966 (16 U.S.C. 470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.), and other environmental review laws and executive orders.
(b) The draft environmental impact statement shall list all Federal permits,
licenses, and other entitlements which must be obtained in implementing the
proposal. If it is uncertain whether a Federal permit, license, or other entitlement
is necessary, the draft environmental impact statement shall so indicate.
PART 1503--COMMENTING
Sec. 1503.1 Inviting comments.
(a) After preparing a draft environmental impact statement and before
preparing a final environmental impact statement the agency shall:
(1) Obtain the comments of any Federal agency which has jurisdiction by law
or special expertise with respect to any environmental impact involved or which
is authorized to develop and enforce environmental standards.
(2) Request the comments of:
(i) Appropriate State and local agencies which are authorized to develop and
enforce environmental standards;
(ii) Indian tribes, when the effects may be on a reservation; and
(iii) Any agency which has requested that it receive statements on actions of
the kind proposed.
Office of Management and Budget Circular A-95 (Revised), through its system of
clearinghouses, provides a means of securing the views of State and local
environmental agencies. The clearinghouses may be used, by mutual
agreement of the lead agency and the clearinghouse, for securing State and
local reviews of the draft environmental impact statements.
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(3) Request comments from the applicant, if any.
(4) Request comments from the public, affirmatively soliciting comments from
those persons or organizations who may be interested or affected.
(b) An agency may request comments on a final environmental impact
statement before the decision is finally made. In any case other agencies or
persons may make comments before the final decision unless a different time is
provided under Sec. 1506.10.
Sec. 1503.2 Duty to comment.
Federal agencies with jurisdiction by law or special expertise with respect to any
environmental impact involved and agencies which are authorized to develop
and enforce environmental standards shall comment on statements within their
jurisdiction, expertise, or authority. Agencies shall comment within the time
period specified for comment in Sec. 1506.10. A Federal agency may reply that
it has no comment. If a cooperating agency is satisfied that its views are
adequately reflected in the environmental impact statement, it should reply
that it has no comment.
Sec. 1503.3 Specificity of comments.
(a) Comments on an environmental impact statement or on a proposed action
shall be as specific as possible and may address either the adequacy of the
statement or the merits of the alternatives discussed or both.
(b) When a commenting agency criticizes a lead agency's predictive
methodology, the commenting agency should describe the alternative
methodology which it prefers and why.
(c) A cooperating agency shall specify in its comments whether it needs
additional information to fulfill other applicable environmental reviews or
consultation requirements and what information it needs. In particular, it shall
specify any additional information it needs to comment adequately on the draft
statement's analysis of significant site-specific effects associated with the
granting or approving by that cooperating agency of necessary Federal
permits, licenses, or entitlements.
(d) When a cooperating agency with jurisdiction by law objects to or expresses
reservations about the proposal on grounds of environmental impacts, the
agency expressing the objection or reservation shall specify the mitigation
measures it considers necessary to allow the agency to grant or approve
applicable permit, license, or related requirements or concurrences.
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Sec. 1503.4 Response to comments.
(a) An agency preparing a final environmental impact statement shall assess
and consider comments both individually and collectively, and shall respond by
one or more of the means listed below, stating its response in the final statement.
Possible responses are to:
(1) Modify alternatives including the proposed action.
(2) Develop and evaluate alternatives not previously given serious
consideration by the agency.
(3) Supplement, improve, or modify its analyses.
(4) Make factual corrections.
(5) Explain why the comments do not warrant further agency response, citing
the sources, authorities, or reasons which support the agency's position and, if
appropriate, indicate those circumstances which would trigger agency
reappraisal or further response.
(b) All substantive comments received on the draft statement (or summaries
thereof where the response has been exceptionally voluminous), should be
attached to the final statement whether or not the comment is thought to merit
individual discussion by the agency in the text of the statement.
(c) If changes in response to comments are minor and are confined to the
responses described in paragraphs (a) (4) and (5) of this section, agencies may
write them on errata sheets and attach them to the statement instead of
rewriting the draft statement. In such cases only the comments, the responses,
and the changes and not the final statement need be circulated (Sec. 1502.19).
The entire document with a new cover sheet shall be filed as the final statement
(Sec. 1506.9).
PART 1504--PREDECISION REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL
ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
Sec. 1504.1 Purpose.
(a) This part establishes procedures for referring to the Council Federal
interagency disagreements concerning proposed major Federal actions that
might cause unsatisfactory environmental effects. It provides means for early
resolution of such disagreements.
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(b) Under § 309 of the Clean Air Act (42 U.S.C. 7609), the Administrator of the
Environmental Protection Agency is directed to review and comment publicly
on the environmental impacts of Federal activities, including actions for which
environmental impact statements are prepared. If after this review the
Administrator determines that the matter is "unsatisfactory from the standpoint
of public health or welfare or environmental quality," § 309 directs that the
matter be referred to the Council (hereafter "environmental referrals").
(c) Under § 102(2) (C) of the Act other Federal agencies may make similar
reviews of environmental impact statements, including judgments on the
acceptability of anticipated environmental impacts. These reviews must be
made available to the President, the Council and the public.
Sec. 1504.2 Criteria for referral.
Environmental referrals should be made to the Council only after concerted,
timely (as early as possible in the process), but unsuccessful attempts to resolve
differences with the lead agency. In determining what environmental objections
to the matter are appropriate to refer to the Council, an agency should weigh
potential adverse environmental impacts, considering:
(a) Possible violation of national environmental standards or policies.
(b) Severity.
(c) Geographical scope.
(d) Duration.
(e) Importance as precedents.
(f) Availability of environmentally preferable alternatives.
Sec. 1504.3 Procedure for referrals and response.
(a) A Federal agency making the referral to the Council shall:
(1) Advise the lead agency at the earliest possible time that it intends to refer a
matter to the Council unless a satisfactory agreement is reached.
(2) Include such advice in the referring agency's comments on the draft
environmental impact statement, except when the statement does not contain
adequate information to permit an assessment of the matter's environmental
acceptability.
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(3) Identify any essential information that is lacking and request that it be made
available at the earliest possible time.
(4) Send copies of such advice to the Council.
(b) The referring agency shall deliver its referral to the Council not later than
twenty-five (25) days after the final environmental impact statement has been
made available to the Environmental Protection Agency, commenting
agencies, and the public. Except when an extension of this period has been
granted by the lead agency, the Council will not accept a referral after that
date.
(c) The referral shall consist of:
(1) A copy of the letter signed by the head of the referring agency and
delivered to the lead agency informing the lead agency of the referral and the
reasons for it, and requesting that no action be taken to implement the matter
until the Council acts upon the referral. The letter shall include a copy of the
statement referred to in (c)(2) of this section.
(2) A statement supported by factual evidence leading to the conclusion that
the matter is unsatisfactory from the standpoint of public health or welfare or
environmental quality. The statement shall:
(i) Identify any material facts in controversy and incorporate (by reference if
appropriate) agreed upon facts,
(ii) Identify any existing environmental requirements or policies which would be
violated by the matter,
(iii) Present the reasons why the referring agency believes the matter is
environmentally unsatisfactory,
(iv) Contain a finding by the agency whether the issue raised is of national
importance because of the threat to national environmental resources or
policies or for some other reason,
(v) Review the steps taken by the referring agency to bring its concerns to the
attention of the lead agency at the earliest possible time, and
(vi) Give the referring agency's recommendations as to what mitigation
alternative, further study, or other course of action (including abandonment of
the matter) are necessary to remedy the situation.
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(d) Not later than twenty-five (25) days after the referral to the Council the lead
agency may deliver a response to the Council, and the referring agency. If the
lead agency requests more time and gives assurance that the matter will not go
forward in the interim, the Council may grant an extension. The response shall:
(1) Address fully the issues raised in the referral.
(2) Be supported by evidence.
(3) Give the lead agency's response to the referring agency's
recommendations.
(e) Interested persons (including the applicant) may deliver their views in writing
to the Council. Views in support of the referral should be delivered not later
than the referral. Views in support of the response shall be delivered not later
than the response.
(f) Not later than twenty-five (25) days after receipt of both the referral and any
response or upon being informed that there will be no response (unless the lead
agency agrees to a longer time), the Council may take one or more of the
following actions:
(1) Conclude that the process of referral and response has successfully resolved
the problem.
(2) Initiate discussions with the agencies with the objective of mediation with
referring and lead agencies.
(3) Hold public meetings or hearings to obtain additional views and information.
(4) Determine that the issue is not one of national importance and request the
referring and lead agencies to pursue their decision process.
(5) Determine that the issue should be further negotiated by the referring and
lead agencies and is not appropriate for Council consideration until one or
more heads of agencies report to the Council that the agencies' disagreements
are irreconcilable.
(6) Publish its findings and recommendations (including where appropriate a
finding that the submitted evidence does not support the position of an
agency).
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(7) When appropriate, submit the referral and the response together with the
Council's recommendation to the President for action.
(g) The Council shall take no longer than 60 days to complete the actions
specified in paragraph (f)(2), (3), or (5) of this section.
(h) When the referral involves an action required by statute to be determined
on the record after opportunity for agency hearing, the referral shall be
conducted in a manner consistent with 5 U.S.C. 557(d) (Administrative
Procedure Act).
PART 1505--NEPA AND AGENCY DECISION-MAKING
Sec. 1505.1 Agency decision-making procedures.
Agencies shall adopt procedures (Sec. 1507.3) to ensure that decisions are
made in accordance with the policies and purposes of the Act. Such
procedures shall include but not be limited to:
(a) Implementing procedures under § 102(2) to achieve the requirements of §§
101 and 102(1).
(b) Designating the major decision points for the agency's principal programs
likely to have a significant effect on the human environment and assuring that
the NEPA process corresponds with them.
(c) Requiring that relevant environmental documents, comments, and
responses be part of the record in formal rulemaking or adjudicator/
proceedings.
(d) Requiring that relevant environmental documents, comments, and
responses accompany the proposal through existing agency review processes
so that agency officials use the statement in making decisions.
(e) Requiring that the alternatives considered by the decision maker are
encompassed by the range of alternatives discussed in the relevant
environmental documents and that the decision maker consider the alternatives
described in the environmental impact statement. If another decision
document accompanies the relevant environmental documents to the decision
maker, agencies are encouraged to make available to the public before the
decision is made any part of that document that relates to the comparison of
alternatives.
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Sec. 1505.2 Record of decision in cases requiring environmental impact
statements.
At the time of its decision (Sec. 1506.10) or, if appropriate, its recommendation
to Congress, each agency shall prepare a concise public record of decision.
The record, which may be integrated into any other record prepared by the
agency, including that required by OMB Circular A-95 (Revised), part I, §§ 6(c)
and (d), and Part II, § 5(b)(4), shall:
(a) State what the decision was.
(b) Identify all alternatives considered by the agency in reaching its decision,
specifying the alternative or alternatives which were considered to be
environmentally preferable. An agency may discuss preferences among
alternatives based on relevant factors including economic and technical
considerations and agency statutory missions. An agency shall identify and
discuss all such factors including any essential considerations of national policy
which were balanced by the agency in making its decision and state how those
considerations entered into its decision.
(c) State whether all practicable means to avoid or minimize environmental
harm from the alternative selected have been adopted, and if not, why they
were not. A monitoring and enforcement program shall be adopted and
summarized where applicable for any mitigation.
Sec. 1505.3 Implementing the decision.
Agencies may provide for monitoring to assure that their decisions are carried
out and should do so in important cases. Mitigation (Sec. 1505.2(c)) and other
conditions established in the environmental impact statement or during its
review and committed as part of the decision shall be implemented by the lead
agency or other appropriate consenting agency. The lead agency shall:
(a) Include appropriate conditions in grants, permits or other approvals.
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or commenting agencies on progress in
carrying out mitigation measures which they have proposed and which were
adopted by the agency making the decision.
(d) Upon request, make available to the public the results of relevant
monitoring.
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PART 1506--OTHER REQUIREMENTS OF NEPA
Sec. 1506.1 Limitations on actions during NEPA process.
(a) Until an agency issues a record of decision as provided in Sec. 1505.2
(except as provided in paragraph (c) of this section), no action concerning the
proposal shall be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(b) If any agency is considering an application from a non-Federal entity, and is
aware that the applicant is about to take an action within the agency's
jurisdiction that would meet either of the criteria in paragraph (a) of this section,
then the agency shall promptly notify the applicant that the agency will take
appropriate action to insure that the objectives and procedures of NEPA are
achieved.
(c) While work on a required program environmental impact statement is in
progress and the action is not covered by an existing program statement,
agencies shall not undertake in the interim any major Federal action covered by
the program which may significantly affect the quality of the human
environment unless such action:
(1) Is justified independently of the program;
(2) Is itself accompanied by an adequate environmental impact statement;
and
(3) Will not prejudice the ultimate decision on the program. Interim action
prejudices the ultimate decision on the program when it tends to determine
subsequent development or limit alternatives.
(d) This section does not preclude development by applicants of plans or
designs or performance of other work necessary to support an application for
Federal, State or local permits or assistance. Nothing in this section shall
preclude Rural Electrification Administration approval of minimal expenditures
not affecting the environment (e.g. long leadtime equipment and purchase
options) made by non-governmental entities seeking loan guarantees from the
Administration.
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Sec. 1506.2 Elimination of duplication with State and local procedures.
(a) Agencies authorized by law to cooperate with State agencies of statewide
jurisdiction pursuant to § 102(2) (D) of the Act may do so.
(b) Agencies shall cooperate with State and local agencies to the fullest extent
possible to reduce duplication between NEPA and State and local
requirements, unless the agencies are specifically barred from doing so by some
other law. Except for cases covered by paragraph (a) of this section, such
cooperation shall to the fullest extent possible include:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by statute).
(4) Joint environmental assessments.
(c) Agencies shall cooperate with State and local agencies to the fullest extent
possible to reduce duplication between NEPA and comparable State and local
requirements, unless the agencies are specifically barred from doing so by some
other law. Except for cases covered by paragraph (a) of this section, such
cooperation shall to the fullest extent possible include joint environmental
impact statements. In such cases one or more Federal agencies and one or
more State or local agencies shall be joint lead agencies. Where State laws or
local ordinances have environmental impact statement requirements in
addition to but not in conflict with those in NEPA, Federal agencies shall
cooperate in fulfilling these requirements as well as those of Federal laws so that
one document will comply with all applicable laws.
(d) To better integrate environmental impact statements into State or local
planning processes, statements shall discuss any inconsistency of a proposed
action with any approved State or local plan and laws (whether or not federally
sanctioned). Where an inconsistency exists, the statement should describe the
extent to which the agency would reconcile its proposed action with the plan or
law.
Sec. 1506.3 Adoption.
(a) An agency may adopt a Federal draft or final environmental impact
statement or portion thereof provided that the statement or portion thereof
meets the standards for an adequate statement under these regulations.
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(b) If the actions covered by the original environmental impact statement and
the proposed action are substantially the same, the agency adopting another
agency's statement is not required to recirculate it except as a final statement.
Otherwise the adopting agency shall treat the statement as a draft and
recirculate it (except as provided in paragraph (c) of this section).
(c) A cooperating agency may adopt without recirculating the environmental
impact statement of a lead agency when, after an independent review of the
statement, the cooperating agency concludes that its comments and
suggestions have been satisfied.
(d) When an agency adopts a statement which is not final within the agency
that prepared it, or when the action it assesses is the subject of a referral under
Part 1504, or when the statement's adequacy is the subject of a judicial action
which is not final, the agency shall so specify.
Sec. 1506.4 Combining documents.
Any environmental document in compliance with NEPA may be combined with
any other agency document to reduce duplication and paperwork.
Sec. 1506.5 Agency responsibility.
(a) Information. If an agency requires an applicant to submit environmental
information for possible use by the agency in preparing an environmental
impact statement, then the agency should assist the applicant by outlining the
types of information required. The agency shall independently evaluate the
information submitted and shall be responsible for its accuracy. If the agency
chooses to use the information submitted by the applicant in the environmental
impact statement, either directly or by reference, then the names of the persons
responsible for the independent evaluation shall be included in the list of
preparers (Sec. 1502.17). It is the intent of this paragraph that acceptable work
not be redone, but that it be verified by the agency.
(b) Environmental assessments. If an agency permits an applicant to prepare
an environmental assessment, the agency, besides fulfilling the requirements of
paragraph (a) of this section, shall make its own evaluation of the environmental
issues and take responsibility for the scope and content of the environmental
assessment.
(c) Environmental impact statements. Except as provided in Sees. 1506.2 and
1506.3 any environmental impact statement prepared pursuant to the
requirements of NEPA shall be prepared directly by or by a contractor selected
by the lead agency or where appropriate under Sec. 1501.6(b), a cooperating
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agency. It is the intent of these regulations that the contractor be chosen solely
by the lead agency, or by the lead agency in cooperation with cooperating
agencies, or where appropriate by a cooperating agency to avoid any conflict
of interest. Contractors shall execute a disclosure statement prepared by the
lead agency, or where appropriate the cooperating agency, specifying that
they have no financial or other interest in the outcome of the project. If the
document is prepared by contract, the responsible Federal official shall furnish
guidance and participate in the preparation and shall independently evaluate
the statement prior to its approval and take responsibility for its scope and
contents. Nothing in this section is intended to prohibit any agency from
requesting any person to submit information to it or to prohibit any person from
submitting information to any agency.
Sec. 1506.6 Public involvement.
Agencies shall:
(a) Make diligent efforts to involve the public in preparing and implementing
their NEPA procedures.
(b) Provide public notice of NEPA-related hearings, public meetings, and the
availability of environmental documents so as to inform those persons and
agencies who may be interested or affected.
(1) In all cases the agency shall mail notice to those who have requested it on
an individual action.
(2) In the case of an action with effects of national concern notice shall include
publication in the Federal Register and notice by mail to national organizations
reasonably expected to be interested in the matter and may include listing in
the 102 Monitor. An agency engaged in rulemaking may provide notice by mail
to national organizations who have requested that notice regularly be provided.
Agencies shall maintain a list of such organizations.
(3) In the case of an action with effects primarily of local concern the notice
may include:
(i) Notice to State and areawide clearinghouses pursuant to OMB Circular A- 95
(Revised).
(ii) Notice to Indian tribes when effects may occur on reservations.
(iii) Following the affected State's public notice procedures for comparable
actions.
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(iv) Publication in local newspapers (in papers of general circulation rather than
legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested community organizations including small
business associations.
(vii) Publication in newsletters that may be expected to reach potentially
interested persons.
(viii) Direct mailing to owners and occupants of nearby or affected property.
(ix) Posting of notice on and off site in the area where the action is to be
located.
(c) Hold or sponsor public hearings or public meetings whenever appropriate or
in accordance with statutory requirements applicable to the agency. Criteria
shall include whether there is:
(1) Substantial environmental controversy concerning the proposed action or
substantial interest in holding the hearing.
(2) A request for a hearing by another agency with jurisdiction over the action
supported by reasons why a hearing will be helpful. If a draft environmental
impact statement is to be considered at a public hearing, the agency should
make the statement available to the public at least 15 days in advance (unless
the purpose of the hearing is to provide information for the draft environmental
impact statement).
(d) Solicit appropriate information from the public.
(e) Explain in its procedures where interested persons can get information or
status reports on environmental impact statements and other elements of the
NEPA process.
(f) Make environmental impact statements, the comments received, and any
underlying documents available to the public pursuant to the provisions of the
Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for
interagency memoranda where such memoranda transmit comments of
Federal agencies on the environmental impact of the proposed action.
Materials to be made available to the public shall be provided to the public
without charge to the extent practicable, or at a fee which is not more than the
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actual costs of reproducing copies required to be sent to other Federal
agencies, including the Council.
Sec. 1506.7 Further guidance.
The Council may provide further guidance concerning NEPA and its procedures
including:
(a) A handbook which the Council may supplement from time to time, which
shall in plain language provide guidance and instructions concerning the
application of NEPA and these regulations.
(b) Publication of the Council's Memoranda to Heads of Agencies.
(c) In conjunction with the Environmental Protection Agency and the
publication of the 102 Monitor, notice of:
(1) Research activities;
(2) Meetings and conferences related to NEPA; and
(3) Successful and innovative procedures used by agencies to implement
NEPA.
Sec. 1506.8 Proposals for legislation.
(a) The NEPA process for proposals for legislation (Sec. 1508.17) significantly
affecting the quality of the human environment shall be integrated with the
legislative process of the Congress. A legislative environmental impact
statement is the detailed statement required by law to be included in a
recommendation or report on a legislative proposal to Congress. A legislative
environmental impact statement shall be considered part of the formal
transmittal of a legislative proposal to Congress; however, it may be transmitted
to Congress up to 30 days later in order to allow time for completion of an
accurate statement which can serve as the basis for public and Congressional
debate. The statement must be available in time for Congressional hearings
and deliberations.
(b) Preparation of a legislative environmental impact statement shall conform
to the requirements of these regulations except as follows:
(1) There need not be a scoping process.
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(2) The legislative statement shall be prepared in the same manner as a draft
statement, but shall be considered the "detailed statement" required by
statute; Provided, That when any of the following conditions exist both the draft
and final environmental impact statement on the legislative proposal shall be
prepared and circulated as provided by Sees. 1503.1 and 1506.10.
(i) A Congressional Committee with jurisdiction over the proposal has a rule
requiring both draft and final environmental impact statements.
(ii) The proposal results from a study process required by statute (such as those
required by the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) and the
Wilderness Act (16 U.S.C. 1131 etseq.)).
(iii) Legislative approval is sought for Federal or federally assisted construction or
other projects which the agency recommends be located at specific
geographic locations. For proposals requiring an environmental impact
statement for the acquisition of space by the General Services Administration, a
draft statement shall accompany the Prospectus or the 11 (b) Report of Building
Project Surveys to the Congress, and a final statement shall be completed
before site acquisition.
(iv) The agency decides to prepare draft and final statements.
(c) Comments on the legislative statement shall be given to the lead agency
which shall forward them along with its own responses to the Congressional
committees with jurisdiction.
Sec. 1506.9 Filing requirements.
Environmental impact statements together with comments and responses shall
be filed with the Environmental Protection Agency, attention Office of Federal
Activities (A-104), 401 M Street SW., Washington, DC 20460. Statements shall be
filed with EPA no earlier than they are also transmitted to commenting agencies
and made available to the public. EPA shall deliver one copy of each
statement to the Council, which shall satisfy the requirement of availability to the
President. EPA may issue guidelines to agencies to implement its responsibilities
under this section and § 1506.10.
Sec. 1506.10 Tinning of agency action.
(a) The Environmental Protection Agency shall publish a notice in the Federal
Register each week of the environmental impact statements filed during the
preceding week. The minimum time periods set forth in this section shall be
calculated from the date of publication of this notice.
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(b) No decision on the proposed action shall be made or recorded under Sec.
1505.2 by a Federal agency until the later of the following dates:
(1) Ninety (90) days after publication of the notice described above in
paragraph (a) of this section for a draft environmental impact statement.
(2) Thirty (30) days after publication of the notice described above in
paragraph (a) of this section for a final environmental impact statement.
An exception to the rules on timing may be made in the case of an agency
decision which is subject to a formal internal appeal. Some agencies have a
formally established appeal process which allows other agencies or the public
to take appeals on a decision and make their views known, after publication of
the final environmental impact statement. In such cases, where a real
opportunity exists to alter the decision, the decision may be made and
recorded at the same time the environmental impact statement is published.
This means that the period for appeal of the decision and the 30-day period
prescribed in paragraph (b)(2) of this section may run concurrently. In such
cases the environmental impact statement shall explain the timing and the
public's right of appeal. An agency engaged in rulemaking under the
Administrative Procedure Act or other statute for the purpose of protecting the
public health or safety, may waive the time period in paragraph (b)(2) of this
section and publish a decision on the final rule simultaneously with publication of
the notice of the availability of the final environmental impact statement as
described in paragraph (a) of this section.
(c) If the final environmental impact statement is filed within ninety (90) days
after a draft environmental impact statement is filed with the Environmental
Protection Agency, the minimum thirty (30) day period and the minimum ninety
(90) day period may run concurrently. However, subject to paragraph (d) of this
section agencies shall allow not less than 45 days for comments on draft
statements.
(d) The lead agency may extend prescribed periods. The Environmental
Protection Agency may upon a showing by the lead agency of compelling
reasons of national policy reduce the prescribed periods and may upon a
showing by any other Federal agency of compelling reasons of national policy
also extend prescribed periods, but only after consultation with the lead
agency. (Also see Sec. 1507.3(d).) Failure to file timely comments shall not be a
sufficient reason for extending a period. If the lead agency does not concur
with the extension of time, EPA may not extend it for more than 30 days. When
the Environmental Protection Agency reduces or extends any period of time it
shall notify the Council.
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Sec. 1506.11 Emergencies.
Where emergency circumstances make it necessary to take an action with
significant environmental impact without observing the provisions of these
regulations, the Federal agency taking the action should consult with the
Council about alternative arrangements. Agencies and the Council will limit
such arrangements to actions necessary to control the immediate impacts of
the emergency. Other actions remain subject to NEPA review.
Sec. 1506.12 Effective date.
The effective date of these regulations is July 30, 1979, except that for agencies
that administer programs that qualify under § 102(2)(D) of the Act or under §
104(h) of the Housing and Community Development Act of 1974 an additional
four months shall be allowed for the State or local agencies to adopt their
implementing procedures.
(a) These regulations shall apply to the fullest extent practicable to ongoing
activities and environmental documents begun before the effective date.
These regulations do not apply to an environmental impact statement or
supplement if the draft statement was filed before the effective date of these
regulations. No completed environmental documents need be redone by
reasons of these regulations. Until these regulations are applicable, the
Council's guidelines published in the Federal Register of August 1, 1973, shall
continue to be applicable. In cases where these regulations are applicable the
guidelines are superseded. However, nothing shall prevent an agency from
proceeding under these regulations at an earlier time.
(b) NEPA shall continue to be applicable to actions begun before January 1,
1970, to the fullest extent possible.
PART 1507--AGENCY COMPLIANCE
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with these regulations. It is
the intent of these regulations to allow each agency flexibility in adapting its
implementing procedures authorized by Sec. 1507.3 to the requirements of other
applicable laws.
Sec. 1507.2 Agency capability to comply.
Each agency shall be capable (in terms of personnel and other resources) of
complying with the requirements enumerated below. Such compliance may
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include use of other's resources, but the using agency shall itself have sufficient
capability to evaluate what others do for it. Agencies shall:
(a) Fulfill the requirements of § 102(2) (A) of the Act to utilize a systematic,
interdisciplinary approach which will insure the integrated use of the natural and
social sciences and the environmental design arts in planning and in decision-
making which may have an impact on the human environment. Agencies shall
designate a person to be responsible for overall review of agency NEPA
compliance.
(b) Identify methods and procedures required by § 102(2)(B) to insure that
presently unquantified environmental amenities and values may be given
appropriate consideration.
(c) Prepare adequate environmental impact statements pursuant to §
102(2) (C) and comment on statements in the areas where the agency has
jurisdiction by law or special expertise or is authorized to develop and enforce
environmental standards.
(d) Study, develop, and describe alternatives to recommended courses of
action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources. This requirement of § 102(2)(E) extends
to all such proposals, not just the more limited scope of § 102(2)(C)(iii) where the
discussion of alternatives is confined to impact statements.
(e) Comply with the requirements of § 102(2)(H) that the agency initiate and
utilize ecological information in the planning and development of resource-
oriented projects.
(f) Fulfill the requirements of §§ 102(2)(F), 102(2)(G), and 102(2)(I), of the Act and
of Executive Order 11514, Protection and Enhancement of Environmental
Quality, Sec. 2.
Sec. 1507.3 Agency procedures.
(a) Not later than eight months after publication of these regulations as finally
adopted in the Federal Register, or five months after the establishment of an
agency, whichever shall come later, each agency shall as necessary adopt
procedures to supplement these regulations. When the agency is a
department, major subunits are encouraged (with the consent of the
department) to adopt their own procedures. Such procedures shall not
paraphrase these regulations. They shall confine themselves to implementing
procedures. Each agency shall consult with the Council while developing its
procedures and before publishing them in the Federal Register for comment.
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Agencies with similar programs should consult with each other and the Council
to coordinate their procedures, especially for programs requesting similar
information from applicants. 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. The Council shall complete its review within 30
days. Once in effect they shall be filed with the Council and made readily
available to the public. Agencies are encouraged to publish explanatory
guidance for these regulations and their own procedures. 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.
(b) Agency procedures shall comply with these regulations except where
compliance would be inconsistent with statutory requirements and shall include:
(1) Those procedures required by Sees. 1501.2(d), 1502.9(c)(3), 1505.1, 1506.6(e),
and 1508.4.
(2) Specific criteria for and identification of those typical classes of action:
(i) Which normally do require environmental impact statements.
(ii) Which normally do not require either an environmental impact statement or
an environmental assessment (categorical exclusions (Sec. 1508.4)).
(iii) Which normally require environmental assessments but not necessarily
environmental impact statements.
(c) Agency procedures may include specific criteria for providing limited
exceptions to the provisions of these regulations for classified proposals. They
are proposed actions which are specifically authorized under criteria
established by an Executive Order or statute to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified pursuant to
such Executive Order or statute. Environmental assessments and environmental
impact statements which address classified proposals may be safeguarded and
restricted from public dissemination in accordance with agencies' own
regulations applicable to classified information. These documents may be
organized so that classified portions can be included as annexes, in order that
the unclassified portions can be made available to the public.
(d) Agency procedures may provide for periods of time other than those
presented in Sec. 1506.10 when necessary to comply with other specific
statutory requirements.
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(e) Agency procedures may provide that where there is a lengthy period
between the agency's decision to prepare an environmental impact statement
and the time of actual preparation, the notice of intent required by Sec. 1501.7
may be published at a reasonable time in advance of preparation of the draft
statement.
PART 1508--TERMINOLOGY AND INDEX
Sec. 1508.1 Terminology.
The terminology of this part shall be uniform throughout the Federal
Government.
Sec. 1508.2 Act.
"Act" means the National Environmental Policy Act, as amended (42 U.S.C.
4321, et seq.) which is also referred to as "NEPA."
Sec. 1508.3 Affecting.
"Affecting" means will or may have an effect on.
Sec. 1508.4 Categorical exclusion.
"Categorical exclusion" means a category of actions which do not individually
or cumulatively have a significant effect on the human environment and which
have been found to have no such effect in procedures adopted by a Federal
agency in implementation of these regulations (Sec. 1507.3) and for which,
therefore, neither an environmental assessment nor an environmental impact
statement is required. An agency may decide in its procedures or otherwise, to
prepare environmental assessments for the reasons stated in Sec. 1508.9 even
though it is not required to do so. Any procedures under this section shall
provide for extraordinary circumstances in which a normally excluded action
may have a significant environmental effect.
Sec. 1508.5 Cooperating agency.
"Cooperating agency" means any Federal agency other than a lead agency
which has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal (or a reasonable alternative) for
legislation or other major Federal action significantly affecting the quality of the
human environment. The selection and responsibilities of a cooperating agency
are described in Sec. 1501.6. A State or local agency of similar qualifications or,
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when the effects are on a reservation, an Indian Tribe, may by agreement with
the lead agency become a cooperating agency.
Sec. 1508.6 Council.
"Council" means the Council on Environmental Quality established by Title II of
the Act.
Sec. 1508.7 Cumulative impact.
"Cumulative impact" is the impact on the environment which results from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can
result from individually minor but collectively significant actions taking place
over a period of time.
Sec. 1508.8 Effects.
"Effects" include:
(a) Direct effects, which are caused by the action and occur at the same time
and place.
(b) Indirect effects, which are caused by the action and are later in time or
farther removed in distance, but are still reasonably foreseeable. Indirect
effects may include growth inducing effects and other effects related to
induced changes in the pattern of land use, population density or growth rate,
and related effects on air and water and other natural systems, including
ecosystems.
Effects and impacts as used in these regulations are synonymous. Effects
includes ecological (such as the effects on natural resources and on the
components, structures, and functioning of affected ecosystems), aesthetic,
historic, cultural, economic, social, or health, whether direct, indirect, or
cumulative. Effects may also include those resulting from actions which may
have both beneficial and detrimental effects, even if on balance the agency
believes that the effect will be beneficial.
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Sec. 1508.9 Environmental assessment.
"Environmental assessment":
(a) Means a concise public document for which a Federal agency is
responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no significant
impact.
(2) Aid an agency's compliance with the Act when no environmental impact
statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as
required by § 102(2)(E), of the environmental impacts of the proposed action
and alternatives, and a listing of agencies and persons consulted.
Sec. 1508.10 Environmental document.
"Environmental document" includes the documents specified in Sec. 1508.9
(environmental assessment), Sec. 1508.11 (environmental impact statement),
Sec. 1508.13 (finding of no significant impact), and Sec. 1508.22 (notice of
intent).
Sec. 1508.11 Environmental impact statement.
"Environmental impact statement" means a detailed written statement as
required by § 102(2)(C) of the Act.
Sec. 1508.12 Federal agency.
"Federal agency" means all agencies of the Federal Government. It does not
mean the Congress, the Judiciary, or the President, including the performance
of staff functions for the President in his Executive Office. It also includes for
purposes of these regulations States and units of general local government and
Indian tribes assuming NEPA responsibilities under § 104(h) of the Housing and
Community Development Act of 1974.
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Sec. 1508.13 Finding of no significant impact.
"Finding of no significant impact" means a document by a Federal agency
briefly presenting the reasons why an action, not otherwise excluded (Sec.
1508.4), will not have a significant effect on the human environment and for
which an environmental impact statement therefore will not be prepared. It
shall include the environmental assessment or a summary of it and shall note any
other environmental documents related to it (Sec. 1501.7(a)(5)). If the
assessment is included, the finding need not repeat any of the discussion in the
assessment but may incorporate it by reference.
Sec. 1508.14 Human environment.
"Human environment" shall be interpreted comprehensively to include the
natural and physical environment and the relationship of people with that
environment. (See the definition of "effects" (Sec. 1508.8).) This means that
economic or social effects are not intended by themselves to require
preparation of an environmental impact statement. When an environmental
impact statement is prepared and economic or social and natural or physical
environmental effects are interrelated, then the environmental impact
statement will discuss all of these effects on the human environment.
Sec. 1508.15 Jurisdiction by law.
"Jurisdiction by law" means agency authority to approve, veto, or finance all or
part of the proposal.
Sec. 1508.16 Lead agency.
"Lead agency" means the agency or agencies preparing or having taken
primary responsibility for preparing the environmental impact statement.
Sec. 1508.17 Legislation.
"Legislation" includes a bill or legislative proposal to Congress developed by or
with the significant cooperation and support of a Federal agency, but does not
include requests for appropriations. The test for significant cooperation is
whether the proposal is in fact predominantly that of the agency rather than
another source. Drafting does not by itself constitute significant cooperation.
Proposals for legislation include requests for ratification of treaties. Only the
agency which has primary responsibility for the subject matter involved will
prepare a legislative environmental impact statement.
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Sec. 1508.18 Major Federal action.
"Major Federal action" includes actions with effects that may be major and
which are potentially subject to Federal control and responsibility. Major
reinforces but does not have a meaning independent of significantly (Sec.
1508.27). Actions include the circumstance where the responsible officials fail to
act and that failure to act is reviewable by courts or administrative tribunals
under the Administrative Procedure Act or other applicable law as agency
action.
(a) Actions include new and continuing activities, including projects and
programs entirely or partly financed, assisted, conducted, regulated, or
approved by federal agencies; new or revised agency rules, regulations, plans,
policies, or procedures; and legislative proposals (Sees. 1506.8, 1508.17). Actions
do not include funding assistance solely in the form of general revenue sharing
funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31
U.S.C. 1221 et seq., with no Federal agency control over the subsequent use of
such funds. Actions do not include bringing judicial or administrative civil or
criminal enforcement actions.
(b) Federal actions tend to fall within one of the following categories:
(1) Adoption of official policy, such as rules, regulations, and interpretations
adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.;
treaties and international conventions or agreements; formal documents
establishing an agency's policies which will result in or substantially alter agency
programs.
(2) Adoption of formal plans, such as official documents prepared or approved
by federal agencies which guide or prescribe alternative uses of Federal
resources, upon which future agency actions will be based.
(3) Adoption of programs, such as a group of concerted actions to implement
a specific policy or plan; systematic and connected agency decisions
allocating agency resources to implement a specific statutory program or
executive directive.
(4) Approval of specific projects, such as construction or management activities
located in a defined geographic area. Projects include actions approved by
permit or other regulatory decision as well as federal and federally assisted
activities.
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Sec. 1508.19 Matter.
"Matter" includes for purposes of Part 1504:
(a) With respect to the Environmental Protection Agency, any proposed
legislation, project, action or regulation as those terms are used in § 309(a) of
the Clean Air Act (42 U.S.C. 7609).
(b) With respect to all other agencies, any proposed major Federal action to
which § 102(2)(C) of NEPA applies.
Sec. 1508.20 Mitigation.
"Mitigation" includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an
action.
(b) Minimizing impacts by limiting the degree or magnitude of the action and its
implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected
environment.
(d) Reducing or eliminating the impact over time by preservation and
maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources
or environments.
Sec. 1508.21 NEPA process.
"NEPA process" means all measures necessary for compliance with the
requirements of § 2 and Title I of NEPA.
Sec. 1508.22 Notice of intent.
"Notice of intent" means a notice that an environmental impact statement will
be prepared and considered. The notice shall briefly:
(a) Describe the proposed action and possible alternatives.
(b) Describe the agency's proposed scoping process including whether, when,
and where any scoping meeting will be held.
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(c) State the name and address of a person within the agency who can answer
questions about the proposed action and the environmental impact statement.
Sec. 1508.23 Proposal.
"Proposal" exists at that stage in the development of an action when an
agency subject to the Act has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal and the
effects can be meaningfully evaluated. Preparation of an environmental
impact statement on a proposal should be timed (Sec. 1502.5) so that the final
statement may be completed in time for the statement to be included in any
recommendation or report on the proposal. A proposal may exist in fact as well
as by agency declaration that one exists.
Sec. 1508.24 Referring agency.
"Referring agency" means the federal agency which has referred any matter to
the Council after a determination that the matter is unsatisfactory from the
standpoint of public health or welfare or environmental quality.
Sec. 1508.25 Scope.
Scope consists of the range of actions, alternatives, and impacts to be
considered in an environmental impact statement. The scope of an individual
statement may depend on its relationships to other statements (Sees. 1502.20
and 1508.28). To determine the scope of environmental impact statements,
agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of
impacts. They include:
(a) Actions (other than unconnected single actions) which may be:
(1) Connected actions, which means that they are closely related and
therefore should be discussed in the same impact statement. Actions are
connected if they:
(i) Automatically trigger other actions which may require environmental impact
statements.
(ii) Cannot or will not proceed unless other actions are taken previously or
simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger
action for their justification.
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(2) Cumulative actions, which when viewed with other proposed actions have
cumulatively significant impacts and should therefore be discussed in the same
impact statement.
(3) Similar actions, which when viewed with other reasonably foreseeable or
proposed agency actions, have similarities that provide a basis for evaluating
their environmental consequences together, such as common timing or
geography. An agency may wish to analyze these actions in the same impact
statement. It should do so when the best way to assess adequately the
combined impacts of similar actions or reasonable alternatives to such actions is
to treat them in a single impact statement.
(b) Alternatives, which include:
(1) No action alternative.
(2) Other reasonable courses of actions.
(3) Mitigation measures (not in the proposed action).
(c) Impacts, which may be: (1) Direct; (2) indirect; (3) cumulative.
Sec. 1508.26 Special expertise.
"Special expertise" means statutory responsibility, agency mission, or related
program experience.
Sec. 1508.27 Significantly.
"Significantly" as used in NEPA requires considerations of both context and
intensity:
(a) Context. This means that the significance of an action must be analyzed in
several contexts such as society as a whole (human, national), the affected
region, the affected interests, and the locality. Significance varies with the
setting of the proposed action. For instance, in the case of a site-specific
action, significance would usually depend upon the effects in the locale rather
than in the world as a whole. Both short- and long-term effects are relevant.
(b) Intensity. This refers to the severity of impact. Responsible officials must bear
in mind that more than one agency may make decisions about partial aspects
of a major action. The following should be considered in evaluating intensity:
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(1) Impacts that may be both beneficial and adverse. A significant effect may
exist even if the Federal agency believes that on balance the effect will be
beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or
cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers,
or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment
are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are
highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions
with significant effects or represents a decision in principle about a future
consideration.
(7) Whether the action is related to other actions with individually insignificant
but cumulatively significant impacts. Significance exists if it is reasonable to
anticipate a cumulatively significant impact on the environment. Significance
cannot be avoided by terming an action temporary or by breaking it down into
small component parts.
(8) The degree to which the action may adversely affect districts, sites,
highways, structures, or objects listed in or eligible for listing in the National
Register of Historic Places or may cause loss or destruction of significant
scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical under
the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.
Sec. 1508.28 Tiering.
"Tiering" refers to the coverage of general matters in broader environmental
impact statements (such as national program or policy statements) with
subsequent narrower statements or environmental analyses (such as regional or
basinwide program statements or ultimately site-specific statements)
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incorporating by reference the general discussions and concentrating solely on
the issues specific to the statement subsequently prepared. Tiering is
appropriate when the sequence of statements or analyses is:
(a) From a program, plan, or policy environmental impact statement to a
program, plan, or policy statement or analysis of lesser scope or to a site-
specific statement or analysis.
(b) From an environmental impact statement on a specific action at an early
stage (such as need and site selection) to a supplement (which is preferred) or a
subsequent statement or analysis at a later stage (such as environmental
mitigation). Tiering in such cases is appropriate when it helps the lead agency
to focus on the issues which are ripe for decision and exclude from
consideration issues already decided or not yet ripe.
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Council on Environmental Quality Questions and Answers
on the National Environmental Policy Act
http://www.nepa.gov/nepa/reqs/40/40p3.htm
NEPA's Forty Most Asked Questions
1. Range of Alternatives.
2. Alternatives Outside the Capability of Applicant or Jurisdiction of Agency.
3. No-Action Alternative.
4. Agency's Preferred Alternative.
5. Proposed Action v. Preferred Alternative.
6. 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. [Withdrawn.]
21. Combining Environmental and Planning Documents.
22.State and Federal Agencies as Joint Lead Agencies.
23. Conflicts of Federal Proposal With Land Use Plans, Policies or 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.
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36. Environmental Assessments (EA).
37. Findings of No Significant Impact (FONSI).
38. Public Availability of EAs v. FONSIs.
39. Mitigation Measures Imposed in EAs and FONSIs.
40. Propriety of Issuing EA When Mitigation Reduces Impacts.
END NOTES
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Appendix B
Environmental Protection Agency (EPA) Procedures for Implementing the
National Environmental Policy Act and Assessing the Environmental Effects
Abroad of EPA Actions (40 C.F.R. Part 6)
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LT:
Wednesday,
September 19. 2007
Part in
Environmental
Protection Agency
-10 <:FR Part (.
Procedures for Implementing the National
Environmental Policy Act aiul Assessing
the Environ mental Effects Abroad of EPA
Actions: Final Rule
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53662 Federal Rcgisler/Vol. 72. No. 181 /Wednesday. September 19. 2007/Rules and Regulations
engage In outreach designed to reach
those in "potentially affected
communities where the proposed action
is known or expected to have
environmental impacts including
minority communities, low-income
communities. or federallv-recognized
Indian tribal communities.' EPA
provides guidance to Responsible
Officials and EPA staff on incorporating
environmental justice concerns into the
NEPA analysis. See "Final Guidance For
Incorporating Environmental Justice
Concerns in EPA's NEPA Compliance
Analyses." April 1998.
K. Congfpssional Review Act
The Congressional Review Act. 5
U.S.C. eoi'etseq.. as added by the Small
Business Regulatory Enforcement
Fairness Act of 199G. generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of ttie United Slates. EPA will submit a
report containing this rule and other
required information to the U.S. Senate.
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Ma|orrule
cannot take effect until 60 davs after it
is published in the Federal Register.
This action is not a "major rule" as
defined bv 5 U.S.C. 804(2). This rule
will be effective October 19. 2007.
List of Subjects in 40 CFR Part tt
Environmental protection.
Environmental assessments.
Environmental impact statements.
Environmental protection reporting.
Foreign relations. Grant programs
environmental protection. Reporting
and recordkeeping requirements.
Dated: September 7. 200".
Stephen L, fohnhon.
Administrator.
Therefore. for the reasons set forth in
the preamble. EPA hereby amends title
40. chapter I of the Code of Federal
Regulations bv revising part 6 to read as
follows:
PART 6PROCEDURES FOR
IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT AND
ASSESSING THE ENVIRONMENTAL
EFFECTS ABROAD OF EPA ACTIONS
Subpart AGeneral Provisions for EPA
Actions Subject to NEPA
Sec.
6.100 Policy and Purpose.
6.101 Applicability.
6.102 Definitions.
6.103 Responsibilities of tbe NEPA and
Responsible Officials.
Subpart BEPA's NEPA Environmental
Review Procedures
6.200 General requirements.
6.201 Coordination witb other
environmental review requirements.
6.202 Intera^ency cooperation.
6.203 Public participation.
6.204 Categorical exclusions and
extraordinary circumstances.
6.205 Environmental assessments.
6.206 Findings of no significant impact.
6.207 Environmental impact statements.
6.206 Records oi decision.
6.20'J Filing requirements for EPA ELSs.
6.210 Emergency circumstances.
Subpart CRequirements for
Environmental Information Documents and
Third-Party Agreements for EPA Actions
Subject to NEPA
6.300 Applicability.
6.301 Applicant requirements.
6.302 Responsible Official requirements.
6.303 Third-party agreements.
Subpart DAssessing the Environmental
Effects Abroad of EPA Actions
6.400 Purpose and policy.
6.401 Applicability.
6.402 Detrnitions.
6.403 Environmental review and
assessment requirements.
6.404 Lead or cooperating agency.
6.405 Exemptions and considerations.
6.406 Implementation.
Authority: 42 U.S.C. 4321 ef swj.. 7401-
7671q. unless otberwi&e noted.
Subpart AGeneral Provisions for
EPA Actions Subject to NEPA
5 6.100 Policy and purpose.
(a) The National Environmental
Policy Act of I960 (NEPA), 42 U.S.C.
4321 et s«;.. as implemented by the
Council on Environmental Quality
(CEQ) Regulations (40 CFR Parts isoo
through 1506). requires that Federal
agencies include in their decision-
making processes appropriate and
careful consideration of all
environmental effects of proposed
actions, analyze potential
environmental effects of proposed
actions and their alternatives for public
understanding and scrutiny, avoid or
minimize adverse effects of proposed
actions, and restore and enhance
environmental quality to the extent
practicable. The U.S. Environmental
Protection Agency (EPA) shall integrate
these NEPA requirements as earlv in the
Agency planning processes as possible.
The environmental review process shall
be the focal point to ensure NEPA
considerations are taken into account.
(b) Through this part. EPA adopts the
CEQ Regulations (40 CFR Parts 1500
through 1506) implementing NEPA'.
subparts A through C of this part
supplement those regulations, for
act! ons proposed by EPA that are
subject to NEPA requirements. Subparts
A through C supplement, and are to be
used in conjunction with, the CEQ
Regulations.
§6.101 Applicability.
(a) Subparts A through C of this part
apply to the proposed actions of EPA
that are subject to NEPA. EPA actions
subject to NEPA include the award of
wastewater treatment construction
grants under Title II of the Clean Water
Act. EPA's issuance of new source
National Pollutant Discharge
Elimination System (NPDES) permits
under section 402 of the Clean Water
Act. certain research and development
projects, development and issuance of
regulations. EPA actions involving
renovations or new construction of
facilities, and certain grants awarded for
projects authorized by Congress through
the Agency's annual Appropriations
Act.
(b) Subparts A through C of this part
do not apply to EPA actions for which
NEPA review is not required. EPA
actions under the Clean Water Act.
except those identified in Jo.lO'l(a). and
EPA actions under the Clean Air Act are
statutorily exempt from NEPA.
Additionally, the courts have
determined that certain EPA actions for
which analyses that have been
conducted under another statute are
functionally equivalent with NEPA.
(c) The appropriate Responsible
Official will undertake certain EPA
actions required by the provisions of
subparts A through C of this part.
(d) Certain procedures in subparts A
through C of this part apply to the
responsibilities of the NEPA Official.
(e) Certain procedures in subparts A
through C of this part apply to
applicants who are required to provide
environmental information to EPA.
(f) When the Responsible Official
decides to perform an environmental
review under the Policy for EPA's
Voluntary Preparation of National
Environm ental Policy Act I NEPA I
Documents, the Responsible Official
generally will follow the procedures set
out in subparts A through C of this part.
§8.102 Definitions.
(a) Subparts A through C of this part
use the definitions found at 40 CFR part
1506. Additional definitions are listed
in this subpart.
(b) Definitions.
(l) AdministiatormBans the
Administrator of the United States
Environmental Protection Agency.
(2) Applicant means anv Individual.
aoencv. or other entltv that has:
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(i) Filed an application for federal
assistance: or
(ii) Applied to EPA fora pormit.
13) Assistance agreement means an
award of federal assistance in the form
of money or property in lieu of money
from EPA to an eligfble applicant
including grants or cooperative
agreements.
(4) Environmental Information
document iEID) means a written
analysis prepared by an applicant that
provides sufficient information for the
Responsible Official to undertake an
environmental review and prepare
either an EA and FONSI or an EIS and
record of decision (ROD) for the
proposed action.
15) Eniironmentol rei'imv or\TZFA
revwiv means the process used to
comply with section 102(2) of NEPA or
the CEQ Regulations including
development, supplementation.
adoption, and revision of NEPA
documents.
(G) Extmordinaiy circumstances
means those circumstances listed in
section 0.204 of this part that may cause
a significant environmental effect such
that a pPDposed action that otherwise
meets the requirements of a categorical
exclusion mav not be categorlcallv
excluded.
(7) NEPA document is a document
prepared pursuant to NEPA.
(8) NEPA Official Is the Assistant
Administrator for Enforcement and
Compliance Assurance, who is
responsible for EPA's NEPA
compliance.
(9.1 Responsible Official means the
EPA official responsible for compliance
with NEPA for individual proposed
actions.
§6.103 Responsibilities of the NEPA and
Responsible Officials.
(a) The NEPA Official will:
(1) Ensure EPA s compliance with
NEPA pursuant to 40 CFR 1507.21 a) and
the regulations in subparts A through C
of this part.
(2) Act as EPA's liaison with the CEQ
and other federal agencies, state and
local governments, and federally-
recognized Indian tribes on matters of
policy and administrative procedures
regarding compliance with NEPA.
(3) Approve procedural deviations
from subparts A through C of this part.
(4) Monitor the overall timeliness and
quality of EPA's compliance with
subparts A through C of this part.
15) Advise the Administrator on
NEPA-related actions that involve more
than one EPA office, are highly
controversial, are nationally significant.
or establish new EPA NEPA-related
policy.
(G) Support the Administrator by
providing policy guidance on NEPA-
related issues.
(7) Assist EPA's Responsible Officials
with establishing and maintaining
adequate administrative procedures to
comply with subparts A through C of
this part, performing their NEPA duties.
and training personnel and applicants
involved in the environmental review
process.
(e) Consult with Responsible Officials
and CEQ regarding proposed changes to
subpart A through C of this part.
including:
(1) The addition, amendment, or
deletion of a categorical exclusion, or
(ii) Changes to the listings of types of
actions that normally require the
preparation of an EA or EIS.
(o) Determine whether proposed
changes are appropriate, and if so.
coordinate with CEQ. pursuant to 40
CFR 1507.3. and initiate a process to
amend this part.
(b) The Responsible Official will:
(1) Ensure EPA's compliance with the
CEQ regulations and subparts A through
C of this part for proposed actions.
(2) Ensure that environmental reviews
are conducted on proposed actions at
the earliest practicable point in EPA's
decision-making process and in
accordance with the provisions of
subparts A through C of this part.
(3) Ensure, to the extent practicable.
early and continued involvement of
interested federal agencies, state and
local governments. Tederally-reeognized
Indian tribes, and affected applicants in
the environmental review process.
(4) Coordinate with the NEPA Official
and other Responsible Officials, as
appropriate, on resolving issues
involving EPA-wide NEPA policy and
procedures (Including the addition.
amendment, or deletion of a categorical
exclusion and changes to the listings of
the types of actions that normally
requires the preparation of an EA or EIS)
and/or unresolved conflicts with other
federal agencies, state and local
governments, and federally-recognized
Indian tribes, and/or advising the
Administrator when necessary.
(S) Coordinate with other Responsible
Officials, as appropriate, on NEPA-
related actions involving their specific
interests.
(G) Consistent with national NEPA
guidance, provide specific policy
guidance, as appropriate, and ensure
that the Responsible Official's office
establishes and maintains adequate
administrative procedures to comply
with subparts A through C of this part.
(7) Upon request of an applicant and
consistent with 40 CFR 1501 .a. set time
limits on the NEPA review appropriate
to individual proposed actions.
(B) Make decisions relating to the
preparation of the appropriate NEPA
documents, including preparing an EA
or EIS. and signing the decision
document.
(9) Monitor the overall timeliness and
quality of the Responsible Official's
respective office's efforts to comply with
subparts A through C of this part.
(c) The NEPA Official and the
Responsible Officials mav delegate
NEPA-related responsibilities to a level
no lower than the Branch Chief or
equivalent organizational level.
Subpart BEPA's NEPA
Environmental Review Procedures
§6.200 General requirements.
(a) The Responsible Official must
determine whether the proposed action
meets the criteria for categorical
exclusion or whether it requires
preparation of an EA or an EIS to
identify and evaluate its environmental
impacts. The Responsible Official may
decide to prepare an EIS without first
undertaking an EA.
(b) The Responsible Official must
determine the scope of the
environmental review by considering
the type of proposed action, the
reasonable alternatives, and the type of
environmental impacts. The scope of an
EIS will be detemiined as provided in
40 CFK 1508.25.
(c) During the environmental review
process, the Responsible Official must:
(1) Integrate the NEPA process and
the procedures of subparts A through C
of this part Into early planning to ensure
appropriate consideration of NEPA's
policies and to minimize or eliminate
delay.
(2) Emphasize cooperative
consultation among federal agencies.
state and local governments, and
federally-recognized Indian tribes before
an EA or EIS is prepared to help ensure
compliance with the procedural
provisions of subparts A through C of
this part and with other environmental
review requirements, to address the
need for interagency cooperation, to
identify the requirements for other
agencies' reviews, and to ensure
appropriate public participation.
(3) Identify at an early stage any
potentially significant environmental
issues to be evaluated in detail and
insignificant issues to be de-
emphasized, focusing the scope of the
environmental review accordingly:
(4) Involve other agencies and the
public, as appropriate, in the
environmental review process for
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proposed actions that are not
categorically excluded to:
(1) Identify the federal, state, local.
and federally-recognized Indian tribal
entities and the members of the public
that may have an interest in the action:
(ill Request that appropriate federal.
state, and local agencies and federally-
recognized Indian tribes serve as
cooperating agencies consistent with 40
CFR 1501.6 and isoe.5; and
(ill) Integrate, where possible, review
of applicable federal laws and executive
orders Into the environmental review
process In conjunction with the
development of NEPA documents.
(d) When preparing NEPA documents.
the Responsible Official must:
(l) Utilize a systematic.
interdisciplinary approach to integrate
the natural and social sciences with the
environmental design arts in planning
and making decisions on proposed
actions subject to environmental review
under subparts A through C of this pan
(see 40 CFR -1501.2(3) and 1507.2):
(2) Plan adequate time and funding
for the NEPA review and preparation of
the NEPA documents. Planning
Includes consideration of whether an
applicant will be required to prepare an
BID for the proposed action.
(3) Review relevant planning or
decision-making documents, whether
prepared by EPA or another federal
agency, to determine if the proposed
action or any of Its alternatives have
been considered in a prior federal NEPA
document. EPA may adopt the existing
document, or will incorporate by
reference any pertinent part of It.
consistent with 40 CFR 1506.3 and
1502.21.
(4) Review relevant environmental
review documents prepared by a state or
local government or a federally-
recognized Indian tribe to determine if
the proposed action or any of its
alternatives have been considered in
such a document. EPA will incorporate
by reference any pertinent part of that
document consistent with 40 CFR
1502.21.
(e) During the decision-making
process for the proposed action, the
Responsible Official must:
(l) Incorporate the NEPA review in
decision-making on the action.
Processing and review of an applicant s
application must proceed concurrently
with the NEPA review procedures set"
out in subparts A through C of this part.
EPA must complete its NEPA review
before making a decision on the action.
(2) Consider the relevant NEPA
documents, public and other agency
comments (if any) on those documents.
and EPA responses to those comments.
as part of consideration of the action
(see 40 CFR 1505. lid)).
(3) Consider the alternatives analvzed
In an EA or EIS before rendering a
decision on the action; and
(4) Ensure that the decision on the
action Li to implement an alternative
analyzed or is within the range of
alternatives analyzed in the EA or EIS
(see 40 CFR 1505. l(e)).
if) To eliminate duplication and to
foster efficiency, the Responsible
Official should use tiering (see 40 CFR
1502.20 and 1508.26) and incorporate
material by reference (see 40 CFR
1502.21) as appropriate.
(g) For applicant-related proposed
actions:
(l) The Responsible Official may
request that the applicant submit
information to support the application
of a categorical exclusion to trie
applicant's pending action.
(2) The Responsible Official may
gather the information and prepare the
NEPA document without assistance
from the applicant, or. pursuant to
Subpart C of this part, have the
applicant prepare an EID or a draft EA
and supporting documents, or enter into
a third-party agreement with the
applicant.
(3) During the environmental review
process, applicants may continue to
compile additional information needed
for the environmental review and/or
information necessary to support an
application for a permit or assistance
agreement from EPA.
"(h) For all NEPA determinations (CEs.
EA'FONSIs, or EIS'RODs) that are five
years old or older, and for which the
sub|ect action has not yet been
implemented, the Responsible Official
must re-evaluate the proposed action,
environmental conditions, and public
views to determine whether to conduct
a supplemental environmental review of
the action and complete an appropriate
NEPA document or reaffirm EPA's
original NEPA determination. If there
has been substantial change in the
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, the Responsible
Official must conduct a supplemental
environmental review of the action and
complete an appropriate NEPA
document.
|6.201 Coordination with other
environmental review requirements.
Consistent with 40 CFR 1500.5(g) and
1502.25. the Responsible Official must
determine the applicability of other
environmental laws and executive
orders, to the fullest extent possible.
The Responsible Official should
incorporate applicable requirements as
early in the NEPA review process as
possible.
§ 6,202 Intoragancy cooperation.
(a) Consistent with 40 CFR 1501.5.
1501.G. and 1508.5. the Responsible
Official will request other appropriate
federal and non-federal agencies to bo
joint lead or cooperating agencies as a
means of encouraging earlv
coordination and cooperation with
federal agencies, state and local
governments, and federally-recognized
Indian tribes with jurisdiction by law or
special expertise.
(b) For an EPA action related to an
action of any other federal agency, the
Responsible Official must complv with
the requirements of 40 CFR 1501.5 and
1501.G relating to lead agencies and
cooperating agencies, respectively. The
Responsible Official will work with the
other involved agencies to facilitate
coordination and to reduce delay and
duplication.
(c) To prepare a single document to
fulfill both NEPA and state or local
government, or federally-recognized
Indian tribe requirements, consistent
with 40 CFR 1506.2. the Responsible
Official should enter into a written
agreement with the Involved state or
local government, or federally-
recognized Indian tribe that sets out the
intentions of the parties, including the
responsibilities each partv intends to
assume and procedures the parties
intend to follow.
§6.203 Public participation.
(a) General requirements. (1) The
procedures in this section apply to
EPA's environmental review processes.
including development.
supplementation, adoption, and
revision of NEPA documents.
(2) The Responsible Official will make
diligent efforts to involve the public.
including applicants, in the preparation
of EAs or EISs consistent with 40 CFR
1501.4 and 1506.6 and applicable EPA
public participation regulations (e.g.. 40
CFR Part 2 5).
(3) EPA NEPA documents will use
plain language to the extent possible.
(4) The Responsible Official will, to
the greatest extent possible, give notice
to any state or local government, or
federally-recognized Indian tribe that, in
the Officials judgment, may be affected
by an action for which EPA plans to
prepare an EA or an EIS.
(5) The Responsible Official must use
appropriate communication procedures
to ensure meaningful public
participation throughout the NEPA
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process. The Responsible uffidal must
make reasonable efforts to involve the
potentially affected communities where
the proposed action is expected to have
environmental impacts or whore the
proposed action may have human
health or environmental effects in anv
communities, including minority
communities, low-income communities.
or federally-recognized Indian tribal
communities.
(b) EA and FONSI requirements. (1)
At least thirty (30) calendar clays before
making the decision on whether, and if
so how. to proceed with a proposed
action, the Responsible Official must
make the EA and preliminary FONSI
available for review and comment to the
interested federal agencies, state and
local governments, federally-recognized
Indian tribes and the affected public.
The Responsible Official must respond
to anv substantive comments received
and finalize the EA and FONSI before
making a decision on the proposed
action.
(2) Where circumstances make it
necessary to take the action without
observing the 30 calendar day comment
period, tfie Responsible Official must
notify the NEPA Official before taking
such action. If the NEPA Official
determines that a reduced comment
period would be in the best interest of
the Government, the NEPA Official will
inform the Responsible Official, as soon
as possible, of this approval. The
Responsible Official will make the EA
and preliminary FONSI available for
review and comment for the reduced
comment period.
(c) ESS an d HOD requirements, (l) As
soon as practicable after the decision to
prepare an EIS and before beginning the
scoping process, the Responsible
Official must ensure that a notice of
intent (NO!) (see 40 CFR 1508.22) is
published in the Federal Register. The
NOI must briefly describe the proposed
action: a preliminary list of
environmental issues to be analyzed.
and possible alternatives; EPA's
proposed scoping process including, if
available, whether, when, and where
anv scoping meeting will be held; and
the name and contact information for
the person designated bv EPA to answer
questions about the proposed action and
the EIS. The NOI must invite comments
and suggestions on the scope of the EIS.
(2) The Responsible Official must
disseminate the NOI consistent with 40
CFR 150G.6.
(3) The Responsible Official must
conduct the scoping process consistent
with 40 CFR 1501.7" and any applicable
EPA public participation regulations
(e.g.. 40 CFR Part 25),
(1) Publication of the NOI in the
Federal Register begins the scoping
process.
(ii) The Responsible Official must
ensure that the scoping process for an
EIS allows a minimum of thirty (30)
days for the receipt of public comments,
(111) The Responsible Official may
hold one or more public meetings as
part of the scoping process for an EPA
EIS. The Responsible Official must
announce the location, date, and time of
public scoping meetings in the NOI or
by other appropriate means, such as
additional notices in the Federal
Register, news releases to the local
media, or letters to affected parties.
Public scoping meetings should be held
at least fifteen (15) days after public
notification.
(iv) The Responsible Official must use
appropriate means to publicize the
availability of draft and final EISs and
the time and place for public meetings
or hearings on draft EISs, The methods
chosen for public participation must
focus on reaching persons who may be
interested in the proposed action. Such
persons include those in potentially
affected communities where the
proposed action is known or expected to
have environmental impacts including
minority communities. low-Income
communities, or federally-recognized
Indian tribal communities,
(v) The Responsible Official must
circulate the draft and final EISs
consistent with 40 CFR 1502.19 and anv
applicable EPA public participation
regulations and in accordance with die
45-day public review period for draft
EISs and the 30-day public review
period for final EISs (see § 6.209 of this
part). Consistent with section 6.20'3(b) of
this part, the Responsible Official may
establish a longer public comment
period fora draft or final EIS.
(vl) After preparing a draft EIS and
before preparing a final EIS, the
Responsible Official must solicit the
comments of appropriate federal
agencies, state and/or local
governments, and/or federally-
recognized Indian tribes, and the public
(see 40 CFR 1503.1). The Responsible
Official must respond in the final EIS to
substantive comments received (see 40
CFR 1503.4).
(vii) The Responsible Official may
conduct one or more public meetings or
hearings on the draft EIS as pan of the
public involvement process. If meetings
or hearings are held, the Responsible
Official must make the draft EIS
available to the public at least thirty (30)
days in advance of any meeting or
hearing.
(4) The Responsible Official must
make the ROD available to the public
upon request.
§ 6.204 Categorical exclusions and
extraordinary circumstances.
(a) A proposed action may be
categorically excluded if the action fits
within a category of action that is
eligible for exclusion and the proposed
action does not Involve any
extraordinary circumstances.
(1) Certain'actions eligible for
categorical exclusion require the
Responsible Official to document a
determination that a categorical
exclusion applies. The documentation
must include: A brief description of the
proposed action: a statement identifying
the categorical exclusion that applies to
the action: and a statement explaining
why no extraordinary circumstances
apply to the proposed action. The
Responsible Official must make a copy
of the determination document available
to the public upon request. The
categorical exclusions requiring this
documentation are listed in paragraphs
(aJllJUJ through (a)(l)(v) of this section.
(1) Actions at EPA owned or operated
facilities invoking routine facility
maintenance, repair, and grounds-
keeping: minor rehabilitation.
restoration, renovation, or revitalization
of existing facilities; functional
replacement of equipment: acquisition
and installation of equipment: or
construction of new minor ancillary
facilities adlacent to or on the same
property as existing facilities.
(11) Actions relating to existing
infrastructure systems (such as sewer
systems: drinking water supply systems:
and stormwater systems. Including
combined sewer overflow svstems] that
involve minor upgrading, or minor
expansion of system capacity or
rehabilitation (including functional
replacement) of the existing system and
system components (such as the sewer
collection network and treatment
system: the system to collect, treat, store
and distribute drinking water: and
stormwater systems, including
combined sewer overflow systems) or
constniction of new minor ancillary
facilities ad|acent to or on the samo
property as existing facilities. This
category does not include actions that:
involve new or relocated discharges to
surface or ground water; will likely
result in the substantial increase in the
volume or the loading of pollutant to the
receiving water: will provide capacity to
serve a population 30% greater than the
existing population: are not supported
by the state, or other regional growth
plan or strategy: or directly or indirectly
involve or relate to upgrading or
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whether an exceptional circumstance
applies. Pursuant to Subpart C of this
part, applicants are not required to
prepare EIDs for actions that are being
considered for categorical exclusion.
(d) The Responsible Official must
prepare an EA or EiS when a proposed
action involves extraordinary
circumstances.
(e) After a determination has been
made that a categorical exclusion
applies to an action, if new information
or chanties in the proposed action
involve or relate to at least one of the
extraordinary circumstances or
otherwise indicate that the action may
not meet the criteria for categorical
exclusion and the Responsible Official
determines that an action no longer
qualifies for a categorical exclusion, the
Responsible Official will prepare an EA
or HS.
(f) The Responsible Official, or other
interested parties, may request the
addition, amendment, or deletion of a
categorical exclusion.
(1.1 Such requests must be made in
writing, be directed to the NEPA
Official, and contain adequate
information to support and justify the
request.
1.2) Proposed new categories of actions
for exclusion must meet these criteria:
(1) Actions covered by the proposed
categorical exclusion generally do not
individually or cumulatively have a
significant effect on the human
environment and have been found bv
EPA to have no such effect.
ill) Actions covered by the proposed
categorical exclusion generally do not
involve extraordinary circumstances as
set out in paragraphs' (b)(l) through
(b)(l4) of this section and generally do
not require preparation of an EIS: and
(ill) Information adequate to
determine that a proposed action is
properly covered by the proposed
category will generally be available.
(si The NEPA Official must determine
that the addition, amendment, or
deletion of a categorical exclusion is
appropriate.
Ig) Any addition, amendment, or
deletion of a categorical exclusion will
be done by rule-making and in
coordination with CEQ pursuant to 40
CFR IS07.3 to amend paragraph (a)( l) or
paragraph (a)(2) of this section.
§ 6.205 Environmental assessments.
(a) The Responsible Official must
prepare an environmental assessment
(EA) (see 40 CFR 1506.9) for a proposed
action that is expected to result in
environmental impacts and the
significance of the Impacts is not
known. An EA is not required if the
proposed action is categorically
excluded, or if the Responsible Official
has decided to prepare an EIS. (See 40
CFR1501.3.)
(b) Types of actions that normally
require the preparation of an EA
include:
('!) The aware! of wastewater treatment
construction grants under Title n of the
Clean Water Act;
(2) EPA's Issuance of new source
NPDES pemilts under section 402 of the
Clean Water Act:
(3) EPA actions involving renovations
or new construction of facilities:
(4) Certain grants awanied for special
projects authorized bv Congress through
the Agency's annual Appropriations
Act; and
(5) Research and development
projects, such as initial field
demonstration of a new technology,
field trials of a new product or new uses
of an existing technology, alteration of
a local habitat by physical or chemical
means, or actions that may result in the
release of radioactive, hazardous, or
toxic substances, or biota.
(c) The Responsible Official, or other
interested parties, may request changes
to the list of actions that normally
require the preparation of an EAU.e..
the addition, amendment, or deletion of
a tvpe of action).
fd) Consistent with 40 CFR 1506.9. an
EA must provide sufficient information
and analysis for determining whether to
prepare an EIS or to issue a FONSI (see
40 CFR 1508.9(3)). and may include
analyses needed for other
environmental determinations. The EA
must focus on resources that might be
impacted and any environmental Issues
that are of public concern.
(e) An EA must include:
(1) A brief discussion of:
(1) The need for the proposed action:
(11) The alternatives, including the no
action alternative (which must be
assessed even when the proposed action
is specifically required bv legislation or
a court order):
(ill) The affected environment,
including baseline conditions that may
be Impacted by the proposed action and
alternatives:
(Iv) The environmental impacts of the
proposed action and alternatives.
including anv unresolved conflicts
concerning alternative uses of available
resources: and
(v) Other applicable environmental
laws and executive orders.
(2) A listing or summary of any
coordination or consultation undertaken
with anv federal agencv. state or local
government, or federally-recognized
Indian tribe regarding compliance with
applicable laws and executive orders;
13) Identification and description of
any mitigation measures considered.
including anv mitigation measures that
must be adopted to ensure the action
will not have significant impacts: and
(4) Incorporation of documents by
reference. If appropriate, including.
when available, the EID for the action.
§ 6.206 Findings ol no significant impact.
(a) The Responsible Official may issue
a finding of no significant impact
(FONSI) (see 40 CFR 1508.13) only if the
EA supports the funding that the
proposed action will not have a
significant effect on the human
environment. If the EA does not support
a FONSI. the Responsible Official must
prepare an EIS and issue a ROD before
taking action on the proposed action.
(b) Consistent with 40 CFR 1508.13. a
FONSI must Include:
(1) The EA. or in lieu of the EA. a
summary of the supporting EA that
includes a brief description of the
proposed action and alternatives
considered in the EA. environmental
factors considered, and project impacts:
and
(2) A brief description of the reasons
why there are no significant Impacts.
(c) In addition, the FONSI must
include:
(1) Any commitments to mitigation
that are essential to render the impacts
of the proposed action not significant:
(2) The date of issuance: and
(3) The signature of the Responsible
Official.
(d) The Responsible Official must
ensure that an applicant that has
committed to mitigation possesses the
authority and ability to fulfill the
commitments.
(e) The Responsible Official must
make a preliminary FONSI available to
the public in accordance with section
G.203(b) of this part before taking action.
(f) The Responsible Official may
proceed with the action subject to any
mitigation measures described in the
FONSI after responding to any
substantive comments received on the
preliminary FONSI during the 30-day
comment period, or 30 days after
issuance of the FONSI if no substantive
comments are received.
(g) The Responsible Official must
ensure that the mitigation measures
necessary to the FONSI determination.
at a minimum, are enforceable, and
conduct appropriate monitoring of the
mitigation measures.
(h) The Responsible Official may
revise a FONSI at any time provided the
revision is supported by an EA. A
revised FONSI is subject to all
provisions of paragraph (d) of this
section.
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measures described in the ROD. The
Responsible Official most ensure
adequate monitoring of mitigation
measures identified in the ROD.
(g) If the mitigation identified in the
ROD will be included as a condition in
the permit or grant, the Responsible
Official must ensure that EPA has the
authority to impose the conditions. The
Responsible Official should ensure that
compliance with assistance agreement
or permit conditions will be monitored
and enforced under EPA's assistance
agreement and permit authorities.
(h) The Responsible Official may
revise a ROD at any time provided the
revision is supported by an EIS. A
revised ROD is sublect to all provisions
of paragraph (d) of this section.
§6.209 Filing requirements fof EPA EISs.
(a) The Responsible Official must file
an EIS with the NEPA Official no earlier
than the date the document is
transmitted to commenting agencies and
made available to the public. The
Responsible Official must comply with
any guidelines established by the NEPA
Official for the filing system process and
comply with 40 CFR 1506.9 and
1506.10. The review periods are
computed through the filing system
process and published in the Federal
Register in the Notice of Availability.
(b j The Responsible Official may
request that the NEPA Official extend
the review periods for an EIS. The
NEPA Official will publish notice of an
extension of the review period in the
Federal Register and notify the CEQ.
§6.210 Emergency circumstances.
If emergency circumstances make it
necessary to take an action that has a
significant environmental impact
without observing the provisions of
subparts A through C of this part that
are required by the GEQ Regulations, the
Responsible Official must consult with
the NEPA Official at the earliest
possible time. Consistent with 40 CFR
1506.11. the Responsible Official and
the NEPA Official should consult with
CEQ about alternative arrangements at
the earliest opportunity. Actions taken
without observing the provisions of
subparts A through C of this part will be
limited to actions necessary to control
the immediate impacts of the
emergency, other actions remain subject
to the environmental review process.
Subpart CRequirements for
Environmental Information Documents
and Third-Party Agreements for EPA
Actions Sifcject to NEPA
$6.300 Applicability.
(a) This section applies to actions that
involve applications to EPA for permits
or assistance agreements.
(b) The Responsible Official is
responsible for the environmental
review process on EPA s action (that b.
issuing the penult or awarding the
assistance agreement) with the applicant
contributing through submission of an
EID or a draft EA and supporting
documents.
(c) An applicant is not njqtiired to
prepare an EID when:
(1) The action has been categorically
excluded or requires the preparation of
an EIS;or
(2) The applicant will prepare and
submit a draft EA and supporting
documents.
(d) The Responsible Official must
notify the applicant if EPA will not
require submission of an EID.
§6.301 Applicant requirements.
(a) The applicant must prepare an EID
in consultation with the Responsible
Official, unless the Responsible Official
has notified the applicant that an EID is
not required. The EID must be of
sufficient scope and content to enable
the Responsible Official to prepare an
EAand FONSI or. if necessary, an EIS
and ROD, The applicant must submit
the EID to the Responsible Official.
(b) The applicant must consult with
the Responsible Official as early as
possible in the planning process to
obtain guidance with respect to the
appropriate level and scope of
environmental information required for
the EID.
(c) As part of the EID process, the
applicant mav consult with appropriate
federal agencies, state and local
governments, federally-recognized
Indian tribes, and other potentially
affected parties to identify their interests
in the project and the environmental
issues associated with the project.
(d) The applicant must notify the
Responsible Official as early as possible
of other federal agency, state or local
government, or federally-recognized
Indian tribe requirements related to the
project. The applicant also must notify
the Responsible Official of any private
entities and organizations affected by
the proposed project. (See 40 CFR
1501,2(d)(2).)
(e) The applicant must notify the
Responsible Official if. during EPA's
environmental review process, the
applicant:
sponsible Official regarding the
plication of a categorical exclusion to
(1) Changes its plans for the project as
originally submitted to EPA: and/or
(2) Changes its schedule for the
project from that originally submitted to
EPA.
(f) In accordance with § 6.204. where
appropriate, the applicant may request a
categorical exclusion determination bv
the Responsible Official. If requested by
the Responsible Official, the applicant
must submit information to the
Resp
appli
EPA's pending action and the
applicant's project.
§ 6.302 Responsible Official requirements.
(a) Consistent with 40 CFR 1501.2(d).
the Responsible Official must ensure
early involvement of applicants in the
environmental review process to
identify environmental effects, avoid
delays, and resolve conflicts.
(bj The Responsible Official must
notify the applicant if a determination
has been made that the action has been
categorically excluded, or if EPA needs
additional information to support the
application of a categorical exclusion or
if the submitted information does not
support the application of a categorical
exclusion and that an EA. or an EIS. will
be required.
(c) When an EID is required for a
project, the Responsible Official must
consult with the applicant and provide
the applicant with guidance describing
the scope and level of environmental
information required.
(li The Responsible Official must
provide guidance on a project-by-project
basis to any applicant seeking such
assistance. For major categories of
actions involving a large nmnber of
applicants, the Responsible Official may
prepare and make available generic
guidance describing the recommended
level and scope of environmental
information that applicants should
provide.
(2) The Responsible Official must
consider the extent to which the
applicant is capable of providing the
required information. The Responsible
Official may not require the applicant to
gather data or perform analyses that
unnecessarily duplicate either existing
data or the results of existing analyses
available to EPA. The Responsible
Official must limit the request for
environmental information to that
necessary for the environmental review.
(d) If. prior to completion of the
environmental review for a project, the
Responsible Official receives
notification, that the applicant is
proposing to or taking an action that
would result in significant impacts or
would limit alternatives, the
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Responsible Official must notify the
applicant promptly that EPA will take
appropriate action to ensure that the
objectives and procedures of NEPA are
achieved (see 40 CFR 1506.l(bj). Such
actions may include withholding grant
funds or denial of permits,
(el The Responsible Official must
begin the NEPA review as soon as
possible after receiving the applicant s
BID or draft EA. The Responsible
Official must Independently evaluate
the information submitted and be
responsible for Us accuracv (see 40 CFR
1506,5),
(fl At the request of an applicant and
at the discretion of the Responsible
Official, an applicant may prepare an
EA or EIS and supporting documents or
enter into a third-party contract
pursuant to §5.303.
(g) The Responsible Official must
review, and take responsibility for the
completed NEPA documents, before
rendering a final decision on the
proposed action.
§6.303 Third-party agreements.
(a) If an EA or EIS is to be prepared
for an action subject to subparts A
through C of this part, the Responsible
Official and the applicant mav enter
into an agreement whereby the
applicant engages and pays for the
services of a third-party contractor to
prepare an EA or EIS and any associated
documents for consideration by EPA. In
such cases, the Responsible Official
must approve the qualifications of the
third-party contractor. The third-party
contractor must be selected on the basis
of ability and absence of any conflict of
interest."Consistent with4o"CFR
1506.5(c). in consultation with the
applicant, the Responsible Official shall
select the contractor. The Responsible
Official must provide guidance to the
applicant and contractor regarding the
information to be developed, including
the project's scope, and guide and
participate in the collection, analysis.
and presentation of the Information. The
Responsible Official has sole authority
for final approval of and EA or EIS.
(l) The applicant must engage and
pay for the services of a contractor to
prepare the EA or ELS and anv
associated documents without using
EPA financial assistance (Including
required match),
(2) The Responsible Official, in
consultation with the applicant, must
ensure that the contractor is qualified to
prepare an EA or EIS. and that the
substantive terms of the contract specify
the Information to be developed, and
the procedures for gathering, analyzing
and presenting the information.
(3) The Responsible Official must
prepare a disclosure statement for the
applicant to include in the contract
specifying that the contractor has no
financial or other interest in the
outcome of the project (see 40 CFR
150G.5(c)).
(4) The Responsible Official will
ensure that the EA or EIS and any
associated documents contain arialyses
and conclusions that adequately assess
the relevant environmental issues.
(b) In order to make a decision on the
action, the Responsible Official must
independently evaluate the information
submitted in the EA or EIS and any
associated documents, and issue an EA
or draft and final EIS. After review of.
and appropriate changes to. the EA or
EIS submitted by the applicant, the
Responsible Official may accept it as
EPA's document. The Responsible
Official Is responsible for the scope.
accuracy, and contents of the EA or EIS
and any associated documents (see 40
CFR 1506.5,1.
(c) A third-party agreement may not
be initiated unless both the applicant
and the Responsible Official agree to its
creation and temis.
(d) The terms of the contract between
the applicant and the third-party
contractor must ensure that the
contractor does not have recourse to
EPA for financial or other claims arising
under the contract, and that the
Responsible Official, or other EPA
designee. may give technical advice to
the contractor.
Subpart DAssessing the
Environmental Effects Abroad of EPA
Actions
Authority: 42 U.S.C. 4321. note. E.O.
12114. 44 FR 1979. 3 CFR. 1979 Coinp.. p.
356.
5 6.400 Purpose and policy.
(a) Purpose, On January 4. 1979. the
President signed Executive Order 12114
entitled "Environmental Effects Abroad
of Major Federal Actions." The purpose
of this Executive Order is to enable
responsible Federal officials in carrying
out or approving major Federal actions
which affect foreign nations or the
global commons to be informed of
pertinent environmental considerations
and to consider fully the environmental
impacts of the actions undertaken.
While based on independent authority.
this Order furthers the purpose of the
National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 et seq.) and the
Marine Prelection. Research, and
Sanctuaries Act (MPRSA) (33 U.S.C.
1401 et sea.). It should be noted,
however, that in fulfilling its
responsibilities under Executive Order
12114. EPA shall be guided by CEQ
regulations only to the extent "that they
are made expressly applicable bv this
subpart. The procedures set forth below
reflect EPA's duties and responsibilities
as required under the Executive Order
and satisfy the requirement for issuance
of procedures under section 2-1 of the
Executive Order,
(b) Policy. It shall be the policy of this
Agency to cam1 out the purpose and
requirements of the Executive Order to
the fullest extent possible. EPA. within
the realm of its expertise, shall work
with the Department of State and the
Council on Environmental Quality to
provide information to other Federal
agencies and foreign nations to heighten
awareness of and interest in the
environment. EPA shall further
cooperate to the extent possible with
Federal agencies to lend special
expertise and assistance in the
preparation of required environmental
documents under the Executive Order.
EPA shall perform environmental
reviews of activities significantly
affecting the global commons and
foreign nations as required under
Executive Order 12114 and as set forth
under these procedures.
§6.401 Applicability,
(a) Administrative actions requiring
environmental review. The
environmental review requirements
apply to the activities of EPA as follows:
(1) Major research or demonstration
projects which affect the global
commons or a foreign nation.
(2) Ocean dumping activities carried
out under section 102 of the MPRSA
which affect the related environment,
(3) Major permitting or licensing by
EPA of facilities which affect the global
commons or the environment of a
foreign nation. This mav include such
act! OILS as the issuance by EPA of
hazardous waste treatment, storage, or
disposal facility permits pursuant to
section 3005 of the Resource
Conservation and Recovery Act (42
U.S.C. 6025). NPDES permits pursuant
to section 402 of the Clean Water Act
(33 U.S.C. 1342). and prevention of
significant deterioration approvals
pursuant to Part C of the Clean Air Act
(42 U.S.C. 747Qetseq.)
(4) Wastewater Treatment
Construction Grants Program tinder
section 201 of the Clean Water Act
when activities addressed in the facility
plan would have environmental effects
abroad.
(5) Other EPA activities as determined
by OFA and OIA (see § Q.406(c)).
' (b) [Reserved].
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§6.402 Definitions.
As used in this subpart. emironm ent
means the natural and physical
environment and excludes social.
economic and other environments;
global commons is that area (land. air.
water) outside the jurisdiction of any
nation; and responsible official is either
the EPA Assistant Administrator or
Regional Administrator as appropriate
for the particular EPA program. Also, an
action significantly affects the
environment If it does significant harm
to the environment even though on
balance the action mav be beneficial to
the environment. To the extent
applicable, the responsible official shall
address the considerations set forth in
the CEQ regulations under 40 CFR
1508.27 in determining significant
effect.
§6.403 Environmental review and
assessment requirement*.
(a) Research and demonstration
projects. The appropriate Assistant
Administrator is responsible for
performing the necessary degree of
environmental review on research and
demonstration protects undertaken by
EPA. If the research or demonstration
project affects the environment of the
global commons, the applicant shall
prepare an environmental analysis. This
will assist the responsible official in
determining whether an EIS is
necessary. If it is determined that the
action significantly affects the
environment of the global commons.
then an EIS shall be prepared. If the
undertaking significantly affects a
foreign nation EPA shall prepare" a
unilaleral. bilateral or multilateral
environmental study. EPA shall afford
the affected foreign nation or
international body or organization an
opportunity to participate in this study.
This environmental study shall discuss
the need for the action, analyze the
environmental impact of the various
alternatives considered and list the
agencies and other parties consulted.
(bj Ocean dumping activities, (l) The
Assistant Administrator for Water shall
ensure the preparation of appropriate
environmental documents relating to
ocean dumping activities in the global
commons under section 102 of the
MPRSA. For ocean dumping site
designations prescribed pursuant to
section tozic.l of the MPRSA and 40
CFR part 22S. and for the establishment
or revision of criteria under section
102(a) of the MPRSA. EPA shall prepare
appropriate environmental documents
consistent with EPA's Notice of Policy
and Procedures for Voluntary
Preparation of National Environmental
Policy Act (NEPA) Documents dated
October 29. 1998.
(2) For individual permits issued by
EPA under section loc(b) an
environmental assessment shall be
made by EPA, Pursuant to 40 CFR part
221. the permit applicant shall submit
with the application an environmental
analysis which includes a discussion of
the need for the action, an outline of
alternatives, and an analysis of the
environmental Impact of the proposed
action and alternatives consistent with
the EPA criteria established under
section 102(3) of MPRSA. The
information submitted under 40 CFR
part 221 shall be sufficient to satisfy the
environmental assessment requirement.
(c) EPA permitting asd licensing
activities. The appropriate Regional
Administrator is responsible for
conducting concise environmental
reviews with regard to permits issued
under section 3005 of the Resource
Conservation and Recovery Act (RCRA
permits), section 402 of the Clean Water
Act (NPDES permits), and section 165 of
the Clean Air Act (PSD permits), for
such actions undertaken by EPA which
affect the global commons or foreign
nations. The information submitted by
applicants for such permits or approvals
under the applicable consolidated
permit regulations (40 CFR pans 122
and 124) and Prevention of Significant
Deterioration (PSD) regulations (40 CFR
part 52) shall satisfy the environmental
document requirement under Section 2-
4(b) of Executive Order 12114.
Compliance with applicable
requirements in part 124 of the
consolidated permit regulations (40 CFR
part 124) shall be sufficient to satisfy the
requirements to conduct a concise
environmental review for permits
subject to this paragraph.
(d) Wasteivater treatm ent facilitv
planning. 40 CFR part o. sub parts A
through C. detail the environmental
review process for the facilities
planning process under the wastewater
treaffnerit works construction grants
program. For the purpose of these
regulations. the facility plan shall also
Include a concise environmental review
of those activities that would have
environmental effects abroad. This shall
apply only to the Step l grants awarded
after "January 14. 1981. but on or before
December 29.1981. and facilities plans
developed after December 29, 1981.
Where water quality impacts identified
in a facility plan are the subject of water
quality agreements with Canada or
Mexico, nothing in these regulations
shall impose on the facility planning
ppiicess coordination and consultation
requirements in addition to those
required by such agreements.
(e) Revieiv by other Federal agencies
and other appropriate officials. The
responsible officials shall consult with
other Federal agencies with relevant
expertise during the preparation of the
environmental document. As soon as
feasible after preparation of the
environmental document, the
responsible official shall make the
document available to the Council on
Environmental Quality. Department of
State, and other appropriate officials.
The responsible official with assistance
from O1A shall work with the
Department of State to establish
procedures for communicating with and
making documents available to foreign
nations and International organizations.
§ 6.404 Lead or cooperating agency.
(a) Lead Agencv. Section 3-3 of
Executive Order 12114 requires the
creation of a lead agency whenever an
action involves more than one Federal
agency. In implementing section 3-3.
EPA shall, to the fullest extent possible.
follow the guidance for the selection of
a lead agency contained in 40 CFR
1501.5 of the CEQ regulations.
(b) Cooperating Agency. Under
Section 2~4(d) of the Executive Order.
Federal agencies with special expertise
are encouraged to provide appropriate
resources to the agency preparing
environmental documents in order to
avoid duplication of resources. In
working with a lead agency. EPA shall
to the fullest extent possible serve as a
cooperating agency in accordance with
40 CFR 1501.6. When other program
commitments preclude the degree of
involvement requested by the lead
agency, the responsible EPA official
shall so inform the lead agency in
writing.
§ 6.405 Exemptions and considerations.
Under section 2-5 (b) and (c) of the
Executive Order. Federal agencies may
provide for modifications in the
contents, timing and availability of
documents or exemptions from certain
requirements for the environmental
review and assessment. The responsible
official, in consultation with the
Director. Office of Federal Activities
(OFAI. and the Assistant Administrator-
Office of International Affairs (OIA).
may approve modifications for
situations described in section 2-5It).
The responsible official, in consultation
with the Director. OFA and Assistant
Administrator, OIA. shall obtain
exemptions from the Administrator for
situations described In section 2-5(c).
The Department of State and the
Council on Environmental Quality shall
be consulted as soon as possible on the
utilization of such exemptions.
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§6.406 Implementation.
(a) Oversight. OFA is responsible for
overseeing the implementation of these
procedures and shall consult with OIA
wherever appropriate. OIA shall be
utilized for making fomial contacts with
the Department of State. OFA shall
assist the responsible officials in
carrying out their responsibilities under
these procedures.
(b) Information exchange. OFA with
the aid of OIA, shall assist the
Department of State and the Council on
Environmental Quality in developing
the informational exchange on
environmental review activities with
foreign nations.
(ci'L'nidentified activities. The
responsible official shall consult with
OFA and OIA to establish the type of
environmental review or document
appropriate for any new EPA activities
or requirements imposed upon EPA by
statute, international agreement or other
agreements.
[FR Doc. E7-130S3 Fifed 9-18-07: 8:45 am)
BILLING CODE S560-50-P
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Appendix C
Cross-Cutter Coordination and Consultation Process
Final 137 EPA Publication No. 315-K-08-001
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Cross-Cutter Coordination and Consultation Process
C.I What are Environmentally Related Cross-Cutters?
Environmentally related cross-cutters are federal statutes, executive orders, or
implementing regulations that address the federal responsibility for protecting
and conserving specific environmental resources. Typically, cross-cutters apply
to all federal activities, including the award of grand funds. In order to comply
with cross-cutters, it is often necessary to provide the administering agency
(agencies responsible for administering the cross-cutter authority) the
opportunity to review and provide input (or concurrence) through consultation
and/or coordination on the proposed project.
Cross-cutters require federal agencies to consider the impact of their programs;
individual actions may have impacts on particular resources and such
considerations should be documented as part of the agency's decision-making
process. Federal actions that could have an effect on a particular resource
include agency activities that could physically disrupt the environment, such as
the issuance of grants and permits for construction projects that could have an
impact on the specific resources in question. In addition, grant applicants should
be aware that other state, local, or tribal government reviews may be needed
for a project under Executive Order 12372, Intergovernmental Review of Federal
Programs. Grant applicants should seek guidance from EPA when determining
all of the reviews applicable to a project.
Although EPA complies3 with the cross-cutters before taking action on a project
(i.e., awarding the grant), the grant applicant may assist EPA in carrying out
these responsibilities. For example, the grant applicant may begin the
coordination and consultation processes. In doing so, the applicant may be
able to get any coordination and consultation requirements of cross-cutters
underway earlier in the environmental review process. Section C.4 provides a
summary of the major federal cross-cutters (statute, executive order, etc.) that
may be applicable to SAAP grant actions.
C.2 What is Involved in a Cross-Cutter Review?
Consultation/coordination with administering agencies for cross-cutter
compliance usually begins early in the planning stages of a program or project.
This avoids delays that might be incurred from having to address a cross-cutter
later on in the environmental review process when it may be more difficult and
time consuming for an agency to make necessary changes to the proposed
action. The evaluation that is conducted under cross-cutters is usually integrated
3 Comp//ance includes committing to a process to be followed during the project design of water and
wastewater infrastructure projects that will result in compliance.
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into other statutory reviews, such as the environmental review process under NEPA.
Thus, the information obtained through the cross-cutter coordination and
consultation process may be used in the development of environmental
documentation required under NEPA (e.g., CATEX request, EID, Draft EA, or Draft
EIS). Ultimately, this helps to reduce paperwork and the potential for delays.
Generally, the cross-cutter review process involves coordinating with the
administering agencies. In some cases, the administering agency has
delegated certain review functions to other agencies. The grant applicant
should discuss with EPA the appropriate approach to coordinating or consulting
with administering agencies. For example, under relevant implementing
regulations, the Advisory Council on Historic Preservation authorizes the State
Historic or Tribal Preservation Office for administering portions of the National
Historic Preservation Act (NHPA). The Cross-Cutter summaries in Section C.4 and
associated Additional References Toolboxes indicate which agency is the initial
contact in the cross-cutter review.
Once it has been determined which cross-cutter authorities apply to the proposed
project, the grant applicant may request coordination/consultation and/or
concurrence from the administering agencies and respond to any substantive
comments from those agencies concerning the potential impacts of the proposed
project. The grant applicant should discuss with EPA and get authorization for
undertaking any coordination and consultation for cross-cutters.4 Under the
National Historic Preservation Act and Endangered Species Act, EPA can
designate the grant applicant to undertake consultation under these Acts. By
undertaking the coordination/consultation process for cross-cutter authorities to
assist EPA, the applicant can reduce the amount of time EPA needs to process the
grant application. If the grant applicant cannot, or chooses not to, undertake the
coordination/consultation process for cross-cutter authorities, EPA is required to do
the consultation/coordination as part of the grant process.
To determine which cross-cutter authorities apply to SAAP grant action projects,
the first step is to meet with the EPA point of contact. In preparation for the
meeting, the grant applicant should carefully review the cross-cutter authorities to
determine which authorities may not apply (see Section C.4 for a summary of key
cross-cutter statutes, regulations, and Executive Orders). Based on the description
and intent, the grant applicant should be able to eliminate some of the cross-
cutters simply due to geographic location. For example, projects in Tennessee are
not subject to the Coastal Zone Management Act or the Coastal Barriers
Resources Act. For some cross-cutters, such as The Wild and Scenic Rivers and The
Wilderness Act, a simple database check will ensure that a protected resource is
not located near the proposed project. In such cases, contacting the
administering agency may not be necessary. However, the process used to
4 EPA may need to obtain approval for a grant applicant to undertake coordination and consultation for a
particular cross-cutter from the respective administering agency.
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determine that a resource is not in the project area and/or will not be affected by
the SAAP grant action should be documented in any environmental information
provided to EPA. The most common cross-cutters that apply to SAAP grant actions
include the Endangered Species Act, the National Historic Preservation Act, and
the Executive Order for Wetlands Protection.
Once the grant applicant has determined which cross-cutters may apply to
their project, the applicant contacts the administering agencies. The grant
applicant should discuss with EPA the specific method to use in contacting the
administering agencies. The Additional References Tool Box associated with
each cross-cutter discussed in Section C.4 of this document contains the web
addresses for the major agency contacts.
Typically, a letter or a fax is sent to the administering agency to initiate
coordination and consultation. The grant applicant should discuss with EPA the
exact method to be used in contacting the applicable cross-cutter agencies.
This ensures the proposed method meets EPA's documentation needs and
relevant requirements of the cross-cutter at issue.
When the grant applicant contacts the administering agencies, they should ask
if that agency would prefer to coordinate with EPA directly or with the grant
applicant. It is important to indicate to the cross-cutter agencies that an
application has been submitted for grant funding from EPA, in whole or in part,
for the proposed SAAP project. When communicating with the administering
agencies, the grant applicant should provide those agencies with detailed
information on the project location, project boundaries, and the areas of
potential ground disturbance. Include a clear description of the project and its
components (i.e., pipelines, pump stations, etc.) along with maps showing the
project component locations. Reference, as appropriate, any biological or
cultural resources that have been determined to be or are potentially present in
the area based on existing information. Also, include, as appropriate, any
biological or cultural resource surveys or assessments that may have been
performed for the project area.
It is important to document all responses and consultation results in any
environmental documentation provided to EPA (e.g., CATEX request, EID, Draft
EA, or Draft EIS). It should not be assumed that no response after a certain
amount of time means the cross-cutter agency has concurred or has no
comment.5 If there is difficulty in completing any coordination or consultation
with any administering agency, the grant applicant should contact the
appropriate EPA point of contact for assistance.
5 Under NHPA regulations, (36 C.F.R. § 800.3(c)(4)), however, failure of the SHPO/THPO to respond to certain
determinations within 30 days allows the federal agency to proceed to the next step in the review
process.
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Sometimes the administering agency will respond that additional information is
needed about the project or resources under the administering agency's
jurisdiction. Additional information may consist of requests to conduct cultural or
biological resources surveys or assessments. Sometimes the administering
agency simply needs more details on the proposed project such as timing and
duration of the project. Occasionally, the administering agency will request
changes to the proposed project to avoid or minimize impacts on the protected
resource. In other instances, mitigation measures may be requested. To the
greatest extent possible, the grant applicant should respond to these requests
for additional information. The grant applicant should contact EPA if there are
any questions on how to address comments received from administering
agencies.
Once responses have been received from all of the administering agencies, the
grant applicant should compile all of the coordination and consultation
documentation. The grant applicant may submit this information to EPA as part
of their request for a CATEX determination (see Section 2.0), or as an appendix
to the EID, Draft EA, or Draft EIS (see Sections 3.0 to 5.0). The coordination and
consultation review documentation should contain:
Copies of the documentation sent to the cross-cutter agencies,
The agencies' responses, including any requests for additional
information, mitigation, and project modifications,
Any responses provided to the cross-cutter agencies, and
Any applicable concurrence letter from the cross-cutter agency.
If some of the concurrence or completed coordination or consultation letters
received were part of any State or Intergovernmental Clearinghouse review
process, include those letters that were sent requesting a review and the
attachments that show the project was reviewed.
C.3 What if the SAAP grant project changes after the coordination and
consultation process has been initiated or completed?
If there are any project changes that might affect any concurrence or
completed coordination/consultation received from administering cross-cutter
agencies, the grant applicant may need to undertake additional coordination
or consultation with a cross-cutter agency. Project changes that are likely to
need additional coordination include, but are not limited to:
Adding sewer or water lines that were previously not included in the
original project plans,
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Adding or moving structures so they are being placed on previously
undisturbed land,
Any change in the location of a water intake or wastewater discharge
point,
Significant changes in capacity,
Placing structures above ground that may obstruct viewing vistas, or
Changing work so that it will occur in wetlands or floodplains.
The grant applicant should contact EPA staff if the project changes after
completion of coordination/consultation with administering cross-cutter agencies.
C.4 What Specific Reviews are Performed as Part of the Cross-Cutter Process?
The following subsections provide general information on the regulatory
framework for each cross-cutter. It should be noted that this information is not a
replication of the law, but is a summary. For all cross-cutter coordination and
consultation, the grant applicant should seek guidance from the EPA point of
contact on the specific processes to be undertaken. Another useful source of
information on cross-cutters is currently being developed by CEQ, the guidance
will be focused on integrating other environmental reviews and analyses (i.e.,
cross cutters) with the NEPA process.
C.4.1 Environmental Justice
Executive Order No. 12898, signed February 11,1994, directs each federal agency
to "make achieving environmental justice part of its mission." Each agency is
required to identify and address any "disproportionately high and adverse
human health or environmental effects of its programs, policies, and activities on
minority populations and low-income populations." EPA has defined
environmental justice as "the fair treatment and meaningful involvement of all
people regardless of race, color, national origin, or income with respect to the
development, implementation, and enforcement of environmental laws,
regulations, and policies." Thus, environmental justice means that "no group of
people, including a racial, ethnic, or a socioeconomic group, should bear a
disproportionate share of the negative environmental consequences resulting
from . .. the execution of federal, state, local, and tribal programs and policies."
(http://www.epa.gov/compliance/environmentaljustice/). One vehicle for EPA to
address environmental justice concerns is the NEPA analysis. As a matter of
policy, EPA has integrated environmental justice concepts into NEPA analyses
through guidelines outlining the steps that should be taken to ensure
environmental justice concerns have been addressed during the NEPA process.
Identifying potential adverse effects on minority and low-income populations, as
well as encouraging early public participation and the development of
alternative or mitigating options is emphasized.
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Additional References
Implementing Regulations/Executive Orders:
Executive Order 12898, Federal Actions to Address
Environmental Justice (EJ) in Minority Populations and Low-
Income Populations.
Supplemental Guidance and Resources:
EPA Environmental Justice Website,
http://www.epa.aov/ebtpaaes/envienvironmentaliustice.ht
n^
Environmental Justice: Guidance under the National
Environmental Policy Act, Council of Environmental Quality,
December 1997.
Final guidance for Incorporating EJ concerns in EPA's NEPA
Compliance Analysis, EPA, April 1988.
Environmental Justice Demographics Tool (Region 2)
http://www.epa.gov/ipbpages/archive/v7/372.htm
Environmental Justice Geographic Assessment Tool,
http://www.epa.gov/enviro/ei/ (Note: this tool assists in
assessing the potential EJ effects of a proposed project in
particular geographic regions).
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C.4.2 Historic Resources
National Historic Preservation Act
16U.S.C. §§470-470x-6
The National Historic Preservation Act (NHPA) embodies a long-standing national
policy to preserve historic sites, buildings, structures, districts and objects of
national, state, tribal, local, and regional significance and, among other things, to
protect such historic properties from adverse impacts caused by activities
undertaken or funded by federal agencies. NHPA expanded the scope of the
1935 Historic Sites Act (Pub. L. No. 74-292) by establishing the National Register of
Historic Places, a listing of historical and cultural resources maintained by the U.S.
Department of the Interior (DOI).
The fundamental responsibilities of federal agencies are expressed in Section 106
of the Act, which reads:
The head of any Federal agency having direct or indirect jurisdiction over a
proposed or federally assisted undertaking in any State and the head of any
Federal department or independent agency having authority to license any
undertaking shall, prior to approval of the expenditure of any Federal funds
on the undertaking or prior to the issuance of any license, as the case may
be, take into account the effect of the undertaking on any district, site,
building, structure, or object that is included in or eligible for inclusion in the
National Register. The head of any such Federal agency shall afford the
Advisory Council on Historic Preservation established under title II of this Act
(16 U.S.C. §§ 4701 et. seq.) a reasonable opportunity to comment with
regard to such undertaking (16 U.S.C. § 470(f)).6
The NHPA is administered by the DOI and the Advisory Council on Historic
Preservation (the Council). The Council implements Sectionl06 of the NHPA and
has promulgated regulations for consultation regarding how to determine the
effects of federal agency undertakings on historic properties (36 C.F.R. Part 800).
Although under certain circumstances the Council may become directly involved
in such consultations, the procedures generally call for consultation between the
federal agency and relevant state or tribal historic preservation officers (SHPOs
and THPOs) and other interested parties, including applicants for federal
assistance (who may be authorized to initiate consultation with the SHPO/THPO
and others-36 C.F.R. § 800.2(c)(4)). The consultation process generally involves a
series of determinations regarding the area of potential effect of the undertaking,
whether there are historic properties (defined as any prehistoric or historic district,
6 Under relevant Section 106 implementing regulations, undertaking means a project, activity, or program
funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including: those
carried out by or on behalf of the agency; those carried out with federal financial assistance; and
those requiring a federal permit, license, or approval (36 C.F.R. § 800.16(y)).
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site, building, structure, or object included in, or eligible for inclusion in, the
National Register of Historic Places-36 C.F.R. § 800.16(1)) within such area, and, if
so, whether such properties may be affected and how to address any adverse
effects.
Additional References
Implementing Regulations/Executive Orders:
Protection of Historic Properties (36 C.F.R. Part 800).
Supplemental Guidance and Resources:
Advisory Council on Historic Preservation website,
http://www.achp.gov
General information and National Historic Sites Listings,
http://www.nps.aov/historv/nr/listing.htm
State Historic Preservation Office Contacts,
http://www.ncshpo.org/stateinfolist/
Archeological and Historic Preservation Act
16U.S.C. §469a-1
The intent of the Archeological and Historic Preservation Act (AHPA) is to limit the
loss of important historical data that would result from federal, or federally
authorized, construction activities. Unlike Section 106 of the NHPA, which
principally addresses adverse effects to historic properties identified within a
project area prior to project initiation, the requirements of the AHPA are typically
invoked when historic properties are discovered after the project has begun and
potential adverse effects may occur. (The NHPA regulations do have a provision
that addresses late discoveries of historic properties (36 C.F.R. § 800.13)).
The AHPA requires federal agencies to identify relics, specimens, and other forms
of scientific, prehistorical, historical, orarcheological data that may be lost
during the construction of federally sponsored projects. If such items are
discovered, the DOI must be notified and may undertake recovery, protection,
or preservation of the data or recommend measures to mitigate potential losses.
The Department's standards and guidelines (48 FR 44716 (Sept. 9, 1983)) detail
accepted archeological preservation activities and methods. This publication is
the standard for all data recovery activities undertaken for discovery situations
under the AHPA, or for avoiding or mitigating adverse impacts on known or
discovered historic properties under the NHPA.
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16 U.S.C. § 469a-l reads in part:
(a) Notification and request for preservation of data
Whenever any Federal agency finds, or is notified, in writing, by an
appropriate historical or archeological authority, that its activities in
connection with any federal construction project or federally licensed
project, activity or program, may cause irreparable loss or destruction of
significant scientific, prehistorical, historical, or archeological data, such
agency shall notify the Secretary [of the Interior], in writing, and shall
provide the Secretary with appropriate information concerning the
project, program, or activity. Such agency may request the Secretary to
undertake the recovery, protection, and preservation of such data .. .. "
Additional References
Implementing Regulations/Executive Orders:
Protection of Historic Properties (36 C.F.R. Part 800).
Supplemental Guidance and Resources:
Department of Interior Archeological and Historic
Preservation Standards and Guidelines (48 FR 44716
(September?, 1983)). See www. nps.gov for relevant
updates.
Advisory Council on Historic Preservation website,
http://www.achp.gov
General information and National Historic Sites Listings,
http://www.nps.aov/historv/nr/listing.htm
State Historic Preservation Office Contacts,
http://www.ncshpo.org/stateinfolist/
0.4.3 Environmentally Sensitive Lands
Wetlands
Executive Order No. 11990 (1977), as amended by Executive Order No. 12608
(1997)
National wetlands policy applicable to many activities of federal agencies is
set forth in Executive Order No. 11990, which was issued by President Carter in
1977 and which President Clinton amended 20 years later by Executive Order
No. 12608. The Executive Order broadly directs all agencies of the federal
government to carefully consider the effects of their actions on wetlands.
Section 2(a) of the order states that:
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. .. each agency, to the extent permitted by law, shall avoid undertaking
or providing assistance for new construction located in wetlands unless
the head of the agency finds (1) that there is no practicable alternative to
such construction, and (2) that the proposed action includes all
practicable measures to minimize harm to wetlands which may result from
such use.
The Executive Order also directs Agencies to provide public notice of any plans
or proposals for new construction in wetlands.
Clean Water Act - Section 404
Section 404 of the Clean Water Act (CWA) establishes a program to regulate
the discharge of dredged or fill material into waters of the United States,
including wetlands. Activities in waters of the United States regulated under this
program include fill for development, water resource projects (such as dams
and levees), infrastructure development (such as highways and airports) and
mining projects.
The basic premise of the program is that no discharge of dredged or fill material
may be permitted if: (1) a practicable alternative exists that is less damaging to
the aquatic environment or (2) the nation's waters would be significantly
degraded. In other words, when you apply for a permit, you must show that you
have, to the extent practicable:
taken steps to avoid wetland impacts;
minimized potential impacts on wetlands; and
provided compensation for any remaining unavoidable impacts.
Proposed activities are regulated through a permit review process. An individual
permit is required for potentially significant impacts. Individual permits are
reviewed by the U.S. Army Corps of Engineers, which evaluates applications
under a public interest review, as well as the environmental criteria set forth in
the CWA Section 404(b) (1) Guidelines. However, for most discharges that will
have only minimal adverse effects, a general permit may be suitable.
General permits are issued on a nationwide, regional, or State basis for particular
categories of activities. The general permit process eliminates individual review
and allows certain activities to proceed with little or no delay, provided that the
general or specific conditions for the general permit are met. For example,
minor road activities, utility line backfill, and bedding are activities that can be
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considered for a general permit. States also have a role in Section 404 decisions,
through State program general permits, water quality certification, or program
assumption.
Coordination with the appropriate District Office of the U.S. Army Corps of
Engineers is recommended in order to determine whether the permitting
requirements of Section 404 of the Clean Water Act are applicable to the
proposed project.
Additional References
Implementing Regulations/Executive Orders:
Executive Order 11990 (as amended by Executive Order 12608),
Protection of Wetlands.
Supplemental Guidance and Resources:
EPA's Statement on Procedures on Floodplain Management
and Wetlands Protection to implement Executive Orders 11988
(Floodplain Management) and 11990 (Protection of Wetlands).
http://www.epa.gov/compliance/resources/policies/nepa/floo
dplain-manaaement-wetlands-statement-pg.pdf
EPA Wetlands Program, http://www.epa.gov/owow/wetlands.
U.S. Army Corps of Engineers
http://www.usace.army.mil/cw/cecwo/rea/
Department of the Interior Fish and Wildlife Service National
Wetlands Inventory Maps, http://www.fws.aov/nwi/fags.htm.
Flood Plain Management
Executive Order No. 11988 (1977), as amended by Executive Order No. 12148
(1979)
Executive Order No. 11988 directs all agencies undertaking, financing, or
assisting proposed activities to determine whether they will occur in or affect a
floodplain and to consider alternatives to avoid adverse effects or
incompatible development in the floodplain. Locations of floodplains can be
determined by examining maps available from the U.S. Department of Housing
and Urban Development, Federal Emergency Management Agency (FEMA),
the U.S. Department of Agriculture, and state water resource planning
agencies. Agencies may take an action in a floodplain if it is the only
practicable alternative consistent with the law and with the Executive Order.
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If construction or improvements will be undertaken or supported in a floodplain
because no practicable alternative locations are available, and the agency
has otherwise complied with the Executive Order, the agency is directed to
design or modify the action to minimize the potential harm to or within the
floodplain. Such measures may include flood proofing the facility to be
constructed, elevating structures above base flood levels, or providing
compensatory flood storage. In addition, the agency is to provide an
opportunity for early public review of each plan or proposal for action taking
place within a floodplain.
To determine whether the project will be located in or is likely to affect a
floodplain, the applicant should obtain the maps from the Federal Insurance
Administration of the Federal Emergency Management Agency that identify
and delineate floodplains in the project area. Boundaries and elevations of the
100- and 500-year flood plains are identified in the Flood Insurance Rate Maps.
For areas that are predominantly state- or federally-owned, consult the
controlling federal or state agency for information. Applicants may obtain
additional information for identifying and delineating floodplains from the
following:
U.S. Army Corps of Engineers,
Natural Resource Conservation Service,
State environmental departments, or
Local municipalities.
If there is no practicable alternative to locating the project in a floodplain,
mitigation measures should be incorporated into the project to minimize or
avoid adverse effects to the floodplain. Mitigation measures can include
restoration and preservation of the natural and beneficial values of the
floodplain. As mentioned in the previous subsection on wetlands, a floodplain
assessment can be combined with a wetlands assessment for the same action.
If applicable, the EID, which includes information on mitigation and design
measures, should include a preliminary finding regarding compliance with EO
11988. Notice of this finding should be given to the Federal Emergency
Management Agency, which may provide recommendations for improving
mitigation measures or further modification of the project's design to enhance
flood protection.
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Additional References
Implementing Regulations/Executive Orders:
Executive Order 11988 (as amended by Executive Order 12148),
Floodplains Management.
FEMA Floodplain regulations, 44 C.F.R. Part 9
Supplemental Guidance and Resources:
EPA Statement of Procedures on Floodplain Management and
Wetlands Protections,
http://www.epa.aov/Compliance/resources/policies/nepa/floo
dplain-manaaement-wetlands-statement-pg.pdf
Water Resources Council's Flood Plain Management Guidelines
issued to assist other federal agencies in developing their
regulations and procedures to comply with Executive Order No.
11988. (43 FR 6030 (1978)): The Guidelines include an eight-step
decision-making process.
"Further Advice on Executive Order 11988 Flood Plain
Management," issued by FEMA and the Interagency Task Force
on Flood Plain Management, in 1987.
FEMA Floodplain Map Service Center,
http://www.fema.aov/business/nfip/msciumppage.shtm
Farmland Protection Policy Act
7 U.S.C. §§4201 - 4209
In the 1970s, federal assistance for large-scale construction projects became
pervasive and concerns developed in several agencies that many projects
were being undertaken without due regard to their effect on the productive
capacity of the nation's agricultural lands. These concerns gave rise to a series
of policy statements, issued by the U.S. Department of Agriculture, the Council
on Environmental Quality and EPA (EPA Policy to Protect Environmentally
Significant Agricultural Lands, signed by the Administrator on September 8,
1978), instructing federal program managers to more carefully consider the
effect of a project on agricultural land and to take alternative or mitigating
measures, when appropriate, to ensure that valuable farmland is preserved.
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This policy direction culminated in 1981 with the passage of the Farmland
Protection Policy Act, which was included in the 1981 Farm Bill (Agriculture and
Food Act of 1981, 7 U.S.C. § 4201 et. seq.). In the Act, Congress directed federal
agencies to use criteria developed by the Department of Agriculture to identify
the potential adverse effects of federal programs on farmland and its
conversion to nonagricultural uses, to mitigate these effects, and to ensure that
programs are carried out in a manner that is compatible with the farmland
preservation policies of state and local governments, and private organizations.
7 U.S.C. § 4202(b) requires all federal agencies to use criteria under the
Act to:
. .. identify and take into account the adverse effects of federal
programs on the preservation of farmland; consider alternative
actions, as appropriate, that could lessen such adverse effects;
and assure that such federal programs, to the extent practicable,
are compatible with state, unit of local government, and private
programs and policies to protect farmland.
Additional References
Implementing Regulations/Executive Orders:
7 C.F.R. Part 658: Department of Agriculture criteria for
identifying and taking into account the adverse effects of
federal programs on the preservation of farmlands.
Supplemental Guidance and Resources:
EPA Policy to Protect Environmentally Significant Agricultural
Lands, September 8, 1978.
General information, contacts, and AD-1006 form, National
Resources Conservation Service,
http://www.nrcs.usda.aov/proqrams/fppa
C.4.4 Coastal Area Protection
Coastal Zone Management Act
16 U.S.C. §§1451 - 1466
In 1972, Congress amended the Marine Resources and Engineering
Development Act to establish a national policy for the protection, beneficial
use, and effective management and development of the nation's coastal
zones.7 The Act is also applicable to the coasts of the Great Lakes. The Coastal
Zone Management Act (Pub. L. No. 101-508, 104Stat. 1388-300 (1990)),
7 The coastal zone encompasses coastal waters including the lands therein and thereunder and the
adjacent shore lands and the waters therein and thereunder. The coastal zone includes islands,
intertidal areas, salt marshes, wetlands and beaches. The zone extends inland from the shorelines only
to the extent necessary to control the shore lands. See 16 U.S.C. § 1453(1).
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authorizes the Secretary of Commerce to approve state management plans
designed to preserve, protect, develop, and where possible, restore or enhance
the Nation's coastal zone, as well as to provide financial assistance to states with
approved management programs. The Act also calls on all federal agencies to
ensure that their activities in or that may affect coastal zones are consistent with
the enforceable policies of state coastal zone management plans that have
been approved by the Department of Commerce.
16U.S.C. §1456(c)(l)(A) states:
Each federal agency activity within or outside the coastal zone
that affects any land or water use or natural resource of the
coastal zone shall be carried out in a manner which is consistent,
to the maximum extent practicable, with the enforceable policies
of approved state management programs.
If EPA's proposed action is in or may affect a coastal zone for which there is an
approved management plan, EPA must develop a consistency determination in
accordance with the National Oceanic and Atmospheric Administration's
regulations titled Federal Consistency With Approved Coastal Zone
Management Programs in 15 C.F.R. Part 930. The consistency determination is a
certification of the EPA action's consistency, to the maximum extent
practicable, with the enforceable policies of the approved state coastal zone
management plan. If the relevant state agency objects to EPA's consistency
determination regarding the proposed action, EPA may not approve or fund this
action unless EPA concludes either that consistency with the enforceable
policies of the approved program is prohibited by law or that the action is fully
consistent with the enforceable policies of the approved program, even though
the state objects. In either case, EPA must notify the state in writing. 15 C.F.R.
§ 930.43
Additional References
Implementing Regulations/Executive Orders:
Consistency for Federal Assistance to State and Locals with
Approved Coastal Zone Management Programs (15 C.F.R.
Part 930, Subpart F).
Coastal Zone Management Program Regulations (15 C.F.R.
Part 923).
Supplemental Guidance and Resources:
State Coast Zone Management locator,
http://www.coastalmanaaement.noaa.aov/mvstate/welcom
e.html
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Coastal Barriers Resources Act
16U.S.C. §§3501 -3510
In 1982, Congress enacted legislation intended to discourage development in
the Coastal Barrier Resources System,8 a collection of undeveloped and
ecologically sensitive barrier formations along the Atlantic and Gulf Coasts of
the United States, and the shore areas of the Great Lakes. The Coastal Barrier
Resources Act restricts federal financial expenditures and assistance for any
purpose within the Coastal Barriers Resources System and the adjacent
wetlands, marshes, estuaries, inlets, and near-shore waters. 16 U.S.C. § 3504(a)
reads in part:
Limitations on Federal Expenditures Affecting the System
(a) ... no new expenditures or new financial assistance may be made
available under authority of any federal law for any purpose within the
[Coastal Barrier Resources System], including, but not limited to
(1) the construction or purchase of any structure,
appurtenance, facility, or related infrastructure ....
16 U.S.C. § 3505 provides a number of exceptions to this limitation on federal
funding, including exceptions for facilities necessary to explore and extract
energy resources and for "the maintenance, replacement, reconstruction, or
repair, but not the expansion of, publicly-owned or operated .. . structures or
facilities that are essential links in a larger network or system." (16 U.S.C.
§3505(a)(3)).
Additional References
Implementing Regulations/Executive Orders:
None.
Supplemental Guidance and Resources:
DOI, U.S. Fish and Wildlife Service, Coastal Barrier Act
Advisory Guidelines (48 FR 45664 (1983)).
General information and contacts,
http://www.fws.aov/habitatconservation/coastal barrier.ht
m
! The Coastal Barrier Resources System is established at 16 U.S.C. § 3503. The areas in the system are
depicted on maps on file with the Secretary of DOI titled, "Coastal Barrier Resources System."
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Environmental Review Guide for Special Appropriation Grants April 2008
0.4.5 Wild and Scenic Rivers
Wild and Scenic Rivers Act
16U.S.C. §§1271 - 1287
Congress passed the Wild and Scenic Rivers Act to preserve the special scenic,
cultural, historic, recreational, geologic, and fish and wildlife values of the
nation's free flowing rivers and related adjacent land. The Act established the
national Wild and Scenic River System, which includes rivers designated by Act
of Congress and rivers that the Secretary of the DOI approves for addition to
the list upon the petition of state governors. The Wild and Scenic Rivers Act
establishes requirements for proposed projects that may affect the river, river
segments, or the adjacent land.
The Wild and Scenic Rivers Act prohibits federal assistance for water resource
projects9 that would have direct and adverse effects on, invade, or
unreasonably diminish, the special values of a designated wild and scenic river.
This restraint is contained in 16 U.S.C. §1278(a), which reads in part:
... no department or agency of the United States shall assist by
loan, grant, or otherwise in the construction of any water resource
project that would have a direct and adverse effect on the
values for which such river was established.
Additional References
Implementing Regulations/Executive Orders:
Wild and Scenic Rivers, Water Resources Projects (36 C.F.R.
Part 297, Subpart A).
Supplemental Guidance and Resources:
Joint DOI National Park Service and Department of
Agriculture (DOA) Forest Service Final Revised Guidelines for
Eligibility Classification and Management of River Areas (47
FR 39457 (1982)).
Designated Rivers information, http://www.nps.gov/rivers/
9 "Wafer resource projects" are defined in the Services' regulations to include "construction of
developments which would affect the free-flowing characteristics of a designated or proposed Wild
and Scenic River or Study River." "Construction" is defined as any action carried out with federal
assistance affecting the free-flowing characteristics or the scenic or natural values of a Wild and Scenic
River or a Study River." (36 C.F.R. § 297.3).
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Environmental Review Guide for Special Appropriation Grants April 2008
C.4.6 Endangered Species
Endangered Species Act
16U.S.C. §§1531 - 1599
Congress passed the Endangered Species Act (ESA) in response to the risks posed
to plants, fish, and wildlife by development and economic growth. The DOI's U.S.
Fish and Wildlife Service and the Department of Commerce's National Marine
Fisheries Service (NMFS) prepare and maintain a list of endangered and
threatened species. The Act requires all federal agencies to ensure that actions
they authorize, fund, or carry out are not likely to jeopardize the continued
existence of listed endangered or threatened species, or destroy or adversely
modify the designated critical habitat on which they depend. The Act also
prohibits federal agencies and all other "persons" from "taking," that is, harming
(including, in some cases, habitat modification), harassing, or killing individuals of
listed endangered, and most threatened, animal species, without prior
authorization for incidental taking from the applicable Service.
Actions that may affect listed species or their critical habitat must be reviewed
through a consultation process between the federal agency and either the U.S.
Fish and Wildlife Service, which is responsible for terrestrial, freshwater species,
and certain marine mammals (e.g., manatees) or the NMFS, which is responsible
for most marine species. Federal agencies also must "confer" with the Service(s)
if their actions are likely to jeopardize the continued existence of species
proposed for listing or result in the destruction or adverse modification of habitat
proposed for designation as critical. The consultation and conference
requirements are established by Section 7 of the Act, which reads in part:
(a) Federal Agency Actions and Consultations.
(2) Each federal agency shall, in consultation with and with the assistance
of the Secretary, insure that any action authorized, funded, or carried out
by such agency is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or
adverse modification of habitat of such species which is determined by
the Secretary, after consultation as appropriate with affected States, to
be critical....
*****
(4) Each federal agency shall confer with the Secretary on any agency
action which is likely to jeopardize the continued existence of any species
proposed to be listed ... or result in the destruction or adverse
modification of critical habitat proposed to be designated for such
species.
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Environmental Review Guide for Special Appropriation Grants April 2008
16U.S.C. §§ 1536(a)(2) and (4)
Finally, the prohibition against "taking" (e.g., harming, harassing, or killing)
individuals of listed animal species is established under Section 9 of the ESA.
Detailed regulations governing consultation, conferences, and take issues
associated with agency actions are set forth at 50 C.F.R. Part 402. These
regulations allow for federal agencies to fulfill certain ESA duties through
designated non-federal representatives (50 C.F.R. § 402.08).
Additional References
Implementing Regulations/Executive Orders:
DOI and Department of Commerce Procedures for Implementing
Section 7 of the Endangered Species Act (50 C.F.R. Part 402).
U.S. Fish and Wildlife Lists of Endangered or Threatened Species (50
C.F.R. §17.11 and §17.12).
U.S. Fish and Wildlife Critical Habitats (50 C.F.R. § 17.95, § 17.96 and Part
226).
NMFS's List of Endangered or Threatened Marine Species (50 C.F.R.
§ 222.23(a) and § 227.4).
Supplemental Guidance and Resources:
Final Endangered Species Act Consultation Handbook for Procedures
for Conducting Consultation and Conference Activities Under Section
7 of the Endangered Species Act, U.S. Fish & Wildlife Service and NMFS
(March 1998), found at
http://www.fws.aov/endanqered/consultations/s7hndbk/s7hndbk.htm
General Information on Federally designated endangered and
threatened species, http://www.fws.aov/endangered/wildlife.html
Endangered and Threatened Species Lists by State,
http://ecos.fws.gov/tess public/StateListing.do?state=all
C.4.7 Essential Fish Habitat
Essential Fish Habitat Consultation Process under the
Magnuson-Stevens Fishery Conservation and Management Act
16U.S.C. §§1801 - 1891
The Magnuson-Stevens Fishery Conservation and Management Act (MSA), as
amended, was designed to manage and conserve national fishery
resources. Eight Regional Fishery Management Councils (RFMC) were
established to maintain the fisheries in their geographic region through
Fishery Management Plans (FMPs). The National Oceanic and Atmospheric
Administration (NOAA), through the NMFS, evaluates FMPs and issues
necessary regulations.
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Environmental Review Guide for Special Appropriation Grants April 2008
In 1996, reflecting Congressional concern with marine habitat loss, the MSA was
amended. The Sustainable Fisheries Act of 1996 added new requirements for the
identification and protection of Essential Fish Habitat (EFH)10 for species included
in the fishery management unit. Each RFMC was required to designate EFH in its
region, as well as identify adverse effects on EFH. Federal agencies are required
to consult with the NMFS regarding "any action authorized, funded, or
undertaken, or proposed to be authorized, funded, or undertaken, by such
agency that may adversely affect any essential fish habitat identified under this
chapter." (16 U.S.C. § 1855(b)(2))
The NMFS issued final EFH regulations in 2002 for coordination and consultation
with federal and state agencies concerning actions that may adversely affect
EFH. (50 C.F.R. § 600.905 et. seq.) Actions completed prior to an EFH designation
will not require a consultation; however, renewals, reviews or substantial revisions
will require a consultation if the renewal, review or revision may adversely affect
EFH. Importantly, "EFH consultation is required for any federal funding of actions
that may adversely affect EFH." (50 C.F.R. § 600.920(a)(1)).
Additional References
Implementing Regulations/Executive Orders:
Final regulations for coordination and consultation with federal and
state agencies concerning actions that may adversely affect EFH (50
C.F.R. § 600.905 et. seq).
Regulations for the sole source aquifer program (40 C.F.R. Part 149).
Supplemental Guidance and Resources:
Federal agency consultation with the Secretary. Includes details on the
requirements of EFH Assessments (50 C.F.R. § 600.920). "EFH Assessment
Template issued by Habitat Conservation Division, NMFS, June 14, 2001,
available at http://www.nwr.noaa.aov/Salmon-Habitat/Salmon-
EFH/upload/EFH-assess.pdf
"Essential Fish Habitat Consultation Guidance" issued by Office of
Habitat Conservation, NMFS, available at
http://www.nmfs.noaa.aov/habitat/efh/Consultation/TOC.html
"Guidance for Integrating Magnuson-Stevens Fishery Conservation and
Management Act EFH Consultations with Endangered Species Act
Section 7 Consultations" issued by NMFS, January 2001, available at
http://www.nmfs.noaa.aov/habitat/habitatprotection/pdf/efh/guidanc
el.pdf
"National Finding for use of Endangered Species Act Section 7
Consultation Process to Complete Essential Fish Habitat Consultations"
issued by NMFS, February 28, 2001, available at
http://www.nmfs.noaa.aov/habitat/habitatprotection/pdf/efh/
EFH%20Consultation%20Guidance%20v1 -1 .pdf
10 EFH is defined as "those waters and substrate necessary to fish for spawning, breeding, feeding, or
growth to maturity." (16 U.S.C. 1802(10)). The NMFS has further interpreted this statutory definition at 50
C.F.R. § 600.10.
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Environmental Review Guide for Special Appropriation Grants April 2008
0.4.8 Clean Air Act
Clean Air Act Conformity
42 U.S.C. §7506(c)
Because of the nature and scope of the problem to be remedied, the Clean
Air Act (CAA) imposes responsibilities for its implementation on all levels of
government. Among other things, the Act directs EPA to set national ambient
air quality standards (NAAQS), which are airborne pollutant levels that are
sufficient to protect the public health and welfare. Each state must develop a
state implementation plan (SIP), describing how it will attain, maintain and
enforce the air quality standards. Developing the SIP, and implementing its
provisions for controlling direct and indirect emissions, is done in consultation
with state air agencies and other government organizations.
Section 176(c) of the Act prohibits any federal activity within a NAAQS non-
attainment or maintenance area that fails to conform to an applicable SIP. This
broad provision reads in part:
(c) Activities not conforming to approved or promulgated plans
(1) No department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide
financial assistance for, license or permit, or approve any activity
which does not conform to a [State Implementation Plan].
42 U.S.C. § 7506(c)
Thus, Section 176(c) requires federal agencies to ensure that emissions from their
actions (including actions supported, funded, or permitted by the federal
government) will conform to the purposes of a SIP or not otherwise interfere with
a state's ability to attain and maintain the NAAQS. EPA has promulgated rules
(40 C.F.R. Part 93) that explain the specific ways in which federal agencies must
carry out their obligations under the Act's conformity provisions. The application
of the rules are dictated by the type of action taken and are divided into
general conformity and transportation conformity.
General Conformity: For any federal action in a NAAQS nonattainment or
maintenance area that is not covered by the provisions of section 176(c) that
apply to highway and mass transit funding and approvals (i.e., for any federal
action not covered by transportation conformity), federal agencies must
determine if a general conformity determination is required for that action.
Unless the federal action is specifically included in the list of exempt activities
contained in the general conformity rule, a general conformity determination is
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Environmental Review Guide for Special Appropriation Grants April 2008
required for each pollutant (or its specific precursors) where the total of direct
and indirect emissions in a nonattainment or maintenance area would equal or
exceed specified thresholds, or where the total emissions are deemed to be
regionally significant. If a conformity determination is required, the general
conformity rule provides a number of ways in which federal agencies can
demonstrate conformity: the emissions are already accounted for in the SIP; the
state can commit to add the activity's emissions to the SIP; the impacts of
activity emissions can be modeled to demonstrate project emissions will not
interfere with the SIP; or the agency can show that emissions offsets (equivalent
in time, location, and quantity to the project emissions) have been secured.
Transportation Conformity: The transportation conformity provisions apply to
federally funded or approved transportation plans, programs, and projects.
Transportation plans and programs are developed for a metropolitan planning
area, pursuant to 23 C.F.R. Part 450. Transportation projects include any
highway or transit project which receives federal funding or approval.
(Accordingly, transportation conformity provisions do not apply to SAAP
projects). EPA's regulations implementing the transportation conformity
requirement require determination that transportation plans, programs, and
projects (with the exception of certain exempt projects specified in the
regulations) in nonattainment and maintenance areas for ozone, carbon
monoxide, nitrogen dioxide, and particulate matter conform to the area's SIP.
Specifically, the conformity regulations ensure that these transportation activities
do not produce new air quality standard violations, worsen existing violations, or
delay timely attainment of air quality standards.
Additional References
Implementing Regulations/Executive Orders:
Requirements for the Preparation, Adoption, and Submittal
of Implementation Plans (40 C.F.R. Part 51)
Determining Conformity of Federal Actions to State or
Federal Implementation Plans (40 C.F.R. Part 93).
Supplemental Guidance and Resources:
General Conformity Guidance: Question and Answers (July
13, 1994 and October 19, 1994) found at
http://www.epa.aov/ttn/oarpa/aenconformity.html.
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Environmental Review Guide for Special Appropriation Grants April 2008
C.4.9 Safe Drinking Water
Safe Drinking Water Act
42 U.S.C. §§300f - 300J-26
In 1974, Congress passed the first comprehensive Safe Drinking Water Act
(SDWA). The Act required water supply systems in the United States to meet
certain minimum national standards to protect the public health. Under the
Act, EPA is required to set standards for the wide range of contaminants that
can be present in drinking water supplies. EPA's drinking water regulations are
codified at 40 C.F.R. Parts 141-143. The SDWA was significantly amended in
1976, 1986, and 1996.
In the 1974 Act, Congress emphasized preventing contamination of aquifers
that are the sole source of drinking water for a community. Specifically, under
section 1424(e) of the Act, if the EPA Administrator determines that an area has
an aquifer which is the sole or principal drinking water source for the area and
which, if contaminated, would create a significant hazard to public health, he
shall publish notice of that determination in the Federal Register. To protect sole
source aquifers11 from contamination, section 1424(e) provides that after the
publication of any such notice,
... no commitment for federal financial assistance (through
a grant, contract, loan guarantee, or otherwise) may be
entered into for any project which the Administrator [of EPA]
determines may contaminate such aquifer through a
recharge zone so as to create a significant hazard to public
health, but a commitment for federal financial assistance
may, if authorized under another provision of law, be entered
into to plan or design the project to assure that it will not so
contaminate the aquifer.
Additional References
Implementing Regulations/Executive Orders:
National Primary and Secondary Drinking Water Standards
(40 C.F.R. Parts 141-143).
Regulations for the sole source aquifer program (40 C.F.R.
Part 149).
Supplemental Guidance and Resources:
Safe Drinking Water Information,
http://www.epa.aov/safewater/sdwa/index.html
1' EPA has currently designated 73 Sole Source Aquifers (SSAs) in the United States. For a map of SSAs in
your EPA Region, see httD://cfDub.eDa.aov/safewater/sourcewater/sourcewater.cfm?action=SSA .
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