[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Notices]
[Pages 77492-77498]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31983]


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COUNCIL ON ENVIRONMENTAL QUALITY


Draft Guidance on Improving the Process for Preparing Efficient 
and Timely Environmental Reviews under the National Environmental 
Policy Act

AGENCY: Council on Environmental Quality.

ACTION: Notice of availability, draft guidance on improving the process 
for preparing efficient and timely environmental reviews under the 
National Environmental Policy Act.

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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its 
draft guidance on Improving the Process for Preparing Efficient and 
Timely Environmental Reviews under the National Environmental Policy 
Act for public review and comment. The National Environmental Policy 
Act (NEPA) and CEQ Regulations implementing NEPA provide numerous 
techniques for preparing efficient and timely environmental reviews. 
CEQ is issuing this guidance for Federal departments and agencies to 
emphasize and clarify these techniques, consistent with a thorough and 
meaningful environmental review and keeping in mind the following basic 
principles: (1) NEPA encourages simple, straightforward, and concise 
reviews and documentation that are proportionate to and effectively 
convey the relevant considerations in a timely manner to the public and 
decisionmakers, while comprehensively addressing the issues presented; 
(2) NEPA should be integrated into project planning rather than be an 
after-the-fact add-on; (3) NEPA reviews should coordinate and take 
appropriate advantage of existing documents and studies, including 
through adoption and incorporation by reference; (4) Early and well-
defined scoping can assist in focusing environmental reviews on

[[Page 77493]]

appropriate issues that would be meaningful to a decision on the 
proposed action; (5) Agencies are encouraged to develop meaningful and 
expeditious timelines for environmental reviews; and (6) Agencies 
should respond to comments in proportion to the scope and scale of the 
environmental issues raised. This guidance applies to the preparation 
of an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) consistent with legal precedent and agency NEPA 
experience and practice. This guidance does not change or substitute 
for any law, regulations, or any other legally binding requirement. 
Rather, it provides CEQ's interpretation of existing regulations 
promulgated under NEPA.

DATES: CEQ must receive comments on or before January 27, 2012.

ADDRESSES: The NEPA Draft Guidance is available at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa. Comments on 
the NEPA Draft Guidance ``Improving the Process for Preparing Efficient 
and Timely Environmental Reviews under the National Environmental 
Policy Act'' should be submitted electronically at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa, or in 
writing to The Council on Environmental Quality, ATTN: Horst Greczmiel, 
Associate Director for National Environmental Policy Act Oversight, 722 
Jackson Place NW., Washington, DC 20503.

FOR FURTHER INFORMATION, CONTACT: The Council on Environmental Quality 
(Attn: Horst Greczmiel, Associate Director for National Environmental 
Policy Act Oversight), 722 Jackson Place NW., Washington, DC 20503. 
Telephone: (202) 395-5750.

SUPPLEMENTARY INFORMATION: Enacted in 1970, the National Environmental 
Policy Act (NEPA), 42 U.S.C. 4321-4370, is a fundamental tool used to 
harmonize our environmental, economic, and social aspirations and is a 
cornerstone of our Nation's efforts to protect the environment. NEPA 
recognizes that many Federal activities affect the environment and 
mandates that Federal agencies consider the environmental impacts of 
their proposed actions before deciding to adopt proposals or take 
action.\1\ Our ongoing review of the CEQ Regulations confirms the 
benefits of integrating planning and environmental reviews, 
coordinating multi-agency or multi-governmental reviews and approvals, 
and setting clear schedules for preparing EAs and EISs. This guidance 
promotes a sufficient and effective process that is tailored to avoid 
excessive burden. This guidance also reflects CEQ's continuing 
commitment to implement its Plan for Retrospective Review of Existing 
Regulations (Plan) in accordance with Executive Order 13563.\2\
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    \1\ A discussion of NEPA applicability is beyond the scope of 
this guidance. For more information see CEQ, The Citizen's Guide to 
the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
    \2\ ``Improving Regulation and Regulatory Review,'' Exec. Order 
13,563, 76 FR 3821 (January 21, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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    The guidance addresses numerous individual issues associated with 
the NEPA review process in a manner that meets the above-stated goals. 
The individual issues addressed include the use of concise NEPA 
documents focused on particular environmental issues, the integration 
of NEPA into preliminary parts of the planning process, and a more 
prevalent role of scoping in the development of NEPA reviews. The 
guidance also advises agencies to collaborate with other government 
bodies--including state, local, or Tribal--and coordinate reviews and 
documents with other laws to allow for greater efficiency. It further 
explains the adoption of other Federal agency reviews, the procedure 
and ability to incorporate information contained in other documents 
into a review, and the role of reasonable and proportionate responses 
to comments within the NEPA process. Finally, the guidance proposes 
agencies utilize appropriate time limits to promote efficiency. Thus, 
this guidance offers concrete tools for each step of the NEPA review 
process, providing, in sum, a more thorough, efficient, and informed 
analysis of environmental issues.
    This guidance provides CEQ's interpretation of existing regulations 
promulgated under NEPA, and does not change agencies' fundamental 
obligations with regard to NEPA and the CEQ Regulations. The draft 
guidance document is provided below and is available at the Council on 
Environmental Quality Web site at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa.
    For the reasons stated above, CEQ is seeking public comment on the 
following draft guidance, entitled ``Improving the Process for 
Preparing Efficient and Timely Environmental Reviews under the National 
Environmental Policy Act.''
    The Draft Guidance: The National Environmental Policy Act (NEPA) 
provides for a wide array of tools for the efficient and timely conduct 
of environmental reviews. The Council on Environmental Quality (CEQ) 
Regulations implementing NEPA contain a number of opportunities for 
achieving this goal. CEQ is issuing this guidance for Federal 
departments and agencies to emphasize and clarify those opportunities, 
fully consistent with a thorough and meaningful environmental review. 
The guidance also makes it clear that many of the provisions of the CEQ 
Regulations which specifically refer to an Environmental Impact 
Statement (EIS) can also apply to an Environmental Assessment (EA). 
This guidance applies to the preparation of an EA or an EIS consistent 
with legal precedent and agency NEPA experience and practice.
    In conducting all environmental reviews pursuant to NEPA, agencies 
should use the methods set out in the CEQ Regulations mindful of the 
following basic principles:
     NEPA encourages simple, straightforward, and concise 
reviews and documentation that are proportionate to and effectively 
convey the relevant considerations in a timely manner to the public and 
decisionmakers while comprehensively addressing the issues presented;
     NEPA should be integrated into project planning rather 
than be an after-the-fact add-on;
     NEPA reviews should coordinate and take appropriate 
advantage of existing documents and studies, including through adoption 
and incorporation by reference;
     Early and well-defined scoping can assist in focusing 
environmental reviews to appropriate issues that would be meaningful to 
a decision on the proposed action;
     Agencies are encouraged to develop meaningful and 
expeditious timelines for environmental reviews; and
     Agencies should respond to comments in proportion to the 
scope and scale of the environmental issues raised.
    This guidance also reflects CEQ's continuing commitment to 
implement its Plan for Retrospective Review of Existing Regulations 
(``Plan'') in accordance with Executive Order 13563.\3\ Our ongoing 
review of the CEQ Regulations confirms the benefits of integrating 
environmental reviews, coordinating multi-agency or multi-governmental 
reviews and approvals, and setting clear schedules for preparing EAs 
and EISs. This guidance promotes

[[Page 77494]]

a sufficient and effective process that is tailored to avoid excessive 
burden. This guidance provides CEQ's interpretation of existing 
regulations promulgated under NEPA, and does not change agencies' 
obligations with regard to NEPA and the CEQ Regulations.\4\
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    \3\ ``Improving Regulation and Regulatory Review,'' Exec. Order 
13,563, 76 FR 3821 (January 21, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
    \4\ This guidance is not a rule or regulation, and the 
recommendations it contains may not apply to a particular situation 
based upon the individual facts and circumstances. This guidance 
does not change or substitute for any law, regulations, or any other 
legally binding requirement and is not legally enforceable. The use 
of non-mandatory terminology such as ``guidance,'' ``recommend,'' 
``may,'' ``should,'' and ``can,'' is intended to describe CEQ 
policies and recommendations. The use of mandatory terminology such 
as ``shall,'' ``must,'' and ``required'' is intended to describe 
controlling requirements under NEPA and the CEQ Regulations, but 
this document does not establish legally binding requirements in and 
of itself.
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    Introduction and Steps to Date: CEQ was created by NEPA in 1970 and 
is charged with overseeing NEPA implementation by Federal agencies. In 
1978, CEQ issued the CEQ Regulations.\5\ From time to time, CEQ issues 
guidance for the Federal agencies, to clarify the requirements and 
applicability of various provisions of NEPA and the CEQ Regulations, 
and to ensure that those requirements can be met in a timely and 
effective fashion.\6\ These guidance documents represent CEQ's 
interpretation of NEPA, which the U.S. Supreme Court has said is 
``entitled to substantial deference.'' \7\
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    \5\ 40 CFR parts 1500-1508 (The Council on Environmental Quality 
(CEQ) Regulations for Implementing the Procedural Provisions of NEPA 
(CEQ Regulations), available on http://www.nepa.gov at 
ceq.hss.doe.gov/ceq_regulations/regulations.html).
    \6\ These guidance documents are available online at 
ceq.hss.doe.gov/ceq_regulations/guidance.
    \7\ Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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    NEPA requires Federal agencies to consider the potential 
environmental consequences of their proposed action, and any reasonable 
alternatives, before deciding whether and in what form to take an 
action. Environmental reviews prepared under NEPA should provide a 
decisionmaker with relevant and timely information, and the CEQ 
Regulations make it clear that ``NEPA's purpose is not to generate 
paperwork--even excellent paperwork--but to foster excellent action.'' 
\8\
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    \8\ 40 CFR 1500.1(c).
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    Complying with NEPA can take three forms, that of a Categorical 
Exclusion, an Environmental Assessment, or an Environmental Impact 
Statement:
     Categorical Exclusion (CE): A CE is a category of actions 
that is expected not to have individually or cumulatively significant 
environmental impacts.\9\ Each agency's procedures for implementing 
NEPA sets out that agency's CEs, which are established after CEQ and 
public review. A proposed action within such a category is excluded 
from further analysis and documentation in an Environmental Assessment 
or an Environmental Impact Statement.\10\ A CE can be concluded with a 
determination that a proposed action falls within one of the categories 
of actions and there are no extraordinary circumstances indicating 
further environmental review is warranted.
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    \9\ Categorical Exclusions can also be created legislatively.
    \10\ 40 CFR 1508.4, 1500.5(k).
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     Environmental Assessment (EA): When a CE is not 
appropriate and the agency has not determined whether the proposed 
action will cause significant environmental effects, then an EA is 
prepared. If, as a result of the EA, a Finding of No Significant Impact 
(FONSI) is appropriate, then the NEPA review process is completed with 
the FONSI, including documentation of its basis in the EA; otherwise an 
Environmental Impact Statement is prepared.\11\
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    \11\ 40 CFR 1508.9.
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     Environmental Impact Statement (EIS): The most intensive 
level of analysis is the Environmental Impact Statement, which is 
typically reserved for the analysis of proposed actions that are 
expected to result in significant environmental impacts. When an EIS is 
prepared, the NEPA review process is concluded when a record of 
decision (ROD) is issued.\12\
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    \12\ 40 CFR 1505.2.
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    CEQ has been working with agencies to modernize and reinvigorate 
NEPA implementation in several ways. CEQ issued guidance on the 
development and use of Categorical Exclusions in November 2010.\13\ 
Properly developed and applied, Categorical Exclusions provide an 
efficient tool to complete the NEPA environmental review process for 
proposals that normally do not require a more resource-intensive EA or 
EIS. The use of Categorical Exclusions can reduce paperwork and delay 
for proposed actions that do not raise the potential for significant 
environmental effects.\14\ In January 2011, CEQ provided guidance that 
specifically addressed the appropriate use of a FONSI to conclude the 
NEPA review process relying on an EA. A mitigated FONSI is appropriate 
when mitigation is used to avoid or lessen potentially significant 
environmental effects of proposed actions that would otherwise need to 
be analyzed in an EIS.\15\ In addition, in May 2010, CEQ issued 
guidance on ensuring efficient and expeditious compliance with NEPA 
when agencies must take exigent action to protect human health or 
safety and valued resources in a timeframe that does not allow 
sufficient time for the normal NEPA process.\16\
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    \13\ CEQ Memorandum, ``Establishing, Applying, and Revising 
Categorical Exclusions under the National Environmental Policy 
Act,'' November 23, 2010, available at ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
    \14\ 40 CFR 1500.4(p) (recommending use of categorical 
exclusions as a tool to reduce paperwork), 1500.5(k) (recommending 
categorical exclusions as a tool to reduce delay).
    \15\ CEQ Memorandum, ``Appropriate Use of Mitigation and 
Monitoring and Clarifying the Appropriate Use of Mitigated Findings 
of No Significant Impact,'' January 14, 2011, available at 
http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
    \16\ CEQ Memorandum, ``Emergencies and the National 
Environmental Policy Act,'' May 12, 2010, available at 
ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
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    In August 2011 the President called for further steps to enhance 
the efficient and effective permitting and environmental review of 
infrastructure development ``through such strategies as integrating 
planning and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear 
schedules for completing steps in the environmental review and 
permitting process; and utilizing information technologies to inform 
the public about the progress of environmental reviews as well as the 
progress of Federal permitting and review processes.''\17\ This 
guidance sets forth straightforward ways by which the CEQ Regulations, 
properly understood and applied, support these strategies.
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    \17\ Presidential Memorandum, ``Speeding Infrastructure 
Development through More Efficient and Effective Permitting and 
Environmental Review'' August 31, 2011, available at http://www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more.
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    1. Concise NEPA Documents: Agencies are encouraged to concentrate 
on environmental analysis in their EAs and EISs, not to produce an 
encyclopedia of all applicable information.\18\ Environmental analysis 
should focus on significant issues, discussing insignificant issues 
only briefly.\19\ Impacts should be discussed in proportion to their 
significance, and if the issues are not deemed significant there should 
be only enough discussion to show why more study is not warranted.\20\ 
Scoping,\21\ incorporation by reference,\22\ and integration of other

[[Page 77495]]

environmental analyses \23\ are additional methods that may be used to 
avoid redundant or repetitive discussion of issues.\24\
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    \18\ 40 CFR 1500.4(b), 1502.2(b).
    \19\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a) 
(``Environmental impact statements shall be analytic rather than 
encyclopedic.'').
    \20\ 40 CFR 1502.2(b).
    \21\ 40 CFR 1500.4(g).
    \22\ 40 CFR 1500.4(j).
    \23\ 40 CFR 1500.4(k).
    \24\ See generally 40 CFR 1502.2 (EISs should be written in 
plain language so that decisionmakers and the public can understand 
them).
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    All NEPA environmental documents, not just EISs, should be written 
in plain language,\25\ follow a clear format, and emphasize important 
portions of the impact analysis over mere background material. Clarity 
and consistency ensure that the substance of the agency's analysis is 
understood clearly, avoiding unnecessary confusion or risk of 
litigation that could result from an ambiguous or opaque analysis. The 
CEQ Regulations indicate that the text of a final EIS that addresses 
the purpose and need, alternatives, affected environment, and 
environmental consequences should normally be less than 150 pages and a 
final EIS for proposals of unusual scope or complexity should normally 
be less than 300 pages.\26\
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    \25\ 40 CFR 1502.8.
    \26\ 40 CFR 1502.7.
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    In light of the growth of environmental requirements since the 
publication of the CEQ Regulations, and the desire to use the EIS to 
address, via integration, those requirements, it is recognized that 
there will be a range of appropriate lengths of EISs. Nevertheless, 
agencies should keep EISs as concise as possible (continuing to 
relegate relevant studies and technical analyses to appendices) and no 
longer than necessary to comply with NEPA and the other legal and 
regulatory requirements being addressed in the EIS, and to provide 
decision makers and the public with the information they need to assess 
the significant environmental effects of the action under review. 
Length should vary with the number, complexity and significance of 
potential environmental problems.\27\
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    \27\ 40 CFR 1502.2(c) (length should vary first with potential 
environmental problems and then with project size).
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    Similarly, the CEQ guidance issued in 1981 indicated that 10-15 
pages is generally appropriate for EAs.\28\ This guidance must be 
balanced with the requirement to take a hard look at the impacts of the 
proposed action. As with EISs, an EA's length should vary with the 
scope and scale of potential environmental problems, rather than just 
with the scope and scale of the proposed action.\29\ The EA should be 
no more elaborate than necessary to fulfill the functions and goals set 
out in the CEQ Regulations: (1) Briefly provide sufficient evidence and 
analysis for determining whether to prepare an EIS; (2) aid an agency's 
compliance with NEPA when no EIS is necessary, i.e., the EA helps to 
identify and analyze better alternatives and mitigation measures; and 
(3) facilitate preparation of an EIS when one is necessary.\30\
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    \28\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions 
Concerning CEQ's National Environmental Policy Act Regulations'' 
(Question and Answer 36a), March 16, 1981, available at http://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36. Note that at the time of 
this memorandum CEQ was of the opinion that mitigated Findings of No 
Significant Impact were only appropriate if the mitigation measures 
were imposed by statute or regulation, or submitted by an applicant 
or agency as part of the original proposal (Question & Answer 40). 
CEQ has since published guidance accepting mitigated FONSIs as 
another means of efficiently concluding the NEPA process without 
producing an EIS (``Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact,'' November 23, 2010, available at http://
http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
    \29\ 40 CFR 1508.9 (The EA is ``a concise public document''); 40 
CFR 1502.2(c) (interpreting the conciseness requirement for an EIS 
to mean that ``length should vary first with potential environmental 
problems and then with project size'').
    \30\ 40 CFR 1508.9(a).
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    2. Early NEPA Integration in Planning: An agency should first 
consider integrating the NEPA process into planning when it structures 
its internal process for developing a proposed policy, program, 
management plan, or project. Agencies must integrate the NEPA process 
into their planning at the earliest possible time to ensure that 
planning and decisions reflect environmental values, avoid delays later 
in the process, and anticipate and attempt to resolve potential 
issues.\31\ NEPA should not become an after-the-fact process that 
justifies decisions that have entirely, or in large part, already been 
made.\32\
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    \31\ 40 CFR 1501.2.
    \32\ 40 CFR 1502.2(g).
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    The CEQ Regulations emphasize early NEPA planning in the context of 
an EIS. The scoping process can be used before a notice of intent to 
seek useful information on a proposal from agencies and the public.\33\ 
For example, agencies can commence the process to prepare an EIS during 
the early stages of development of a proposal, to ensure that the 
environmental analysis can be completed in time for the agency to 
consider the final EIS before making a decision on the proposal.\34\ 
Further, an agency shall prepare an EIS so that it can inform the 
decisionmaking process in a timely manner ``and will not be used to 
rationalize or justify decisions already made.''\35\
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    \33\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions 
Concerning CEQ's National Environmental Policy Act Regulations'' 
(Question and Answer 13), March 16, 1981 available at 
ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13.
    \34\ 40 CFR 1508.23 (A proposal exists as soon as an agency has 
a goal, is developing one or more alternatives to achieve that goal, 
and the effects can be meaningfully evaluated).
    \35\ 40 CFR 1502.5. For guidelines specific to different agency 
activities, see 40 CFR 1502.5(a)--(d). Misuse of the NEPA process to 
justify decisions already made is counterproductive and can result 
in litigation that could delay and ultimately prevent a proposed 
action from proceeding.
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    If agencies are to prepare efficient EAs, then they should adhere 
to these same principles and ensure that the EA is prepared in 
conjunction with the development of the proposed action, and in time to 
inform the public and the decisionmaker. Agencies should review their 
NEPA implementing procedures as well as their NEPA practices to ensure 
that NEPA is integrated into overall project management to the fullest 
extent possible whether the agencies are preparing an EA or an EIS.
    The CEQ Regulations call upon agencies to provide for situations 
where the initial planning process is in the hands of an applicant or 
other non-Federal entity.\36\ The Regulations require Federal agencies 
to address these situations in their NEPA implementing procedures.\37\ 
Consequently, agencies that have a reasonably foreseeable role in 
actions that are initially developed by private applicants or other 
non-Federal entities must plan for those situations. The NEPA 
implementing procedures for such agencies must provide access to 
designated staff or the policies that can inform applicants and other 
non-Federal

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entities of studies or other information foreseeably required for later 
Federal action.\38\
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    \36\ 40 CFR 1501.2(d) (non-Federal entities plan activities 
prior to Federal involvement that trigger NEPA requirements).
    \37\ 40 CFR 1507.3(b)(1). All agencies are required to adopt 
procedures that supplement the CEQ Regulations and provide NEPA 
implementing guidance that both provides agency personnel with 
additional, more specific direction for implementing the procedural 
provisions of NEPA and informs the public and State and local 
officials of how the CEQ Regulations will be implemented in agency 
decisionmaking. Agency procedures should therefore provide Federal 
personnel with the direction they need to implement NEPA on a day-
to-day basis. The procedures must also provide a clear and 
uncomplicated picture of what those outside the Federal government 
may do to become involved in the environmental review process under 
NEPA. See CEQ Memorandum, ``Agency Implementing Procedures Under 
CEQ's NEPA Regulations,'' January 19, 1979 available at 
ceq.hss.doe.gov/nepa/regs/exec11979.html. Some examples of agency 
NEPA implementing procedures are the Department of the Interior 
Department Manual, National Park Service, ``Managing the NEPA 
Process,'' May 27, 2004, available at http://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior 
Department Manual, Bureau of Land Management, ``Managing the NEPA 
Process,'' May 8, 2008, available at http://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
    \38\ 40 CFR 1501.2(d)(1).
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    Advanced planning for initially non-Federal actions must also 
ensure that the Federal agency is able to initiate early consultation 
with appropriate Tribes, States, local agencies, and interested private 
persons and organizations when Federal involvement is reasonably 
foreseeable.\39\ For actions initiated at the request of a non-Federal 
entity, Federal agencies should begin the NEPA process for preparing 
their EA or EIS as early as possible but no later than upon receipt of 
a complete application.\40\ Federal agencies should, whenever possible, 
guide applicants to gather and develop the appropriate level of 
information and analyses in advance of submitting an application or 
other request for federal agency action. For example, several agencies 
require an applicant to prepare and submit an environmental report to 
help prepare the NEPA analyses and documentation and facilitate the 
lead agency's independent environmental review of the proposal.
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    \39\ 40 CFR 1501.2(d)(2). Agencies should be cognizant of their 
obligations under current Executive Orders 13175 (Consultation and 
Coordination with Indian Tribal Governments, Nov 6, 2000) and 112898 
(Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations, Feb 11, 1994), available at 
ceq.hss.doe.gov/laws_and_executive_orders/executive_orders.html.
    \40\ 40 CFR 1501.2(d)(3).
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    3. Scoping: To effectuate integration, avoid duplication, and focus 
the NEPA review, the CEQ Regulations provide for ``scoping.'' \41\ In 
scoping, the lead agency determines the issues that its EA or EIS will 
address and identifies the significant issues related to the proposed 
action that will be considered in the analysis.\42\ To increase 
efficiency, the lead agency can solicit cooperation at the earliest 
possible time from other agencies that have jurisdiction by law or 
special expertise on any environmental issue that should be considered. 
Cooperating agencies with jurisdiction by law or special expertise can 
work with the lead agency to ensure that, whenever possible, one NEPA 
review process informs all the decisions needed to determine whether 
and, if so, how a proposed action will proceed.\43\
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    \41\ 40 CFR 1501.7 (``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.'')
    \42\ 40 CFR 1500.4(b), (g) and 1501.7.
    \43\ 40 CFR 1501.6, 1508.5 (responsibilities of the lead agency 
include the requirement to request the participation of any other 
Federal agency which has jurisdiction by law). Previous guidance on 
engaging other agencies with jurisdiction over permits and other 
approvals required for a proposal to proceed include: CEQ Memorandum 
for Heads of Federal Agencies, ``Cooperating Agencies in 
Implementing the Procedural Requirements of the National 
Environmental Policy Act'' (January 30, 2002), available at 
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; and CEQ Memorandum to Agencies, 
``Forty Most Asked Questions Concerning CEQ's National Environmental 
Policy Act Regulations'' (Question and Answer 14), March 16, 1981 
available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14.
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    The CEQ Regulations explicitly address the role of scoping in 
preparation of an EIS. Agencies can also choose to take advantage of 
scoping when preparing an EA that deals with uncertainty or controversy 
regarding potential conflicts over the use of resources or the 
environmental effects of the proposed action. For example, a lead 
agency preparing such an EA may use scoping to identify and eliminate 
from detailed study the issues that are not significant or that have 
been covered by prior environmental review.\44\ The scoping process 
provides a transparent way to identify significant environmental issues 
and to deemphasize insignificant issues,\45\ thereby focusing the 
analysis on the most pertinent issues and impacts.\46\
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    \44\ 40 CFR 1501.7(a)(3).
    \45\ 40 CFR 1500.4(g).
    \46\ 40 CFR 1501.4(b) (agencies are to involve the public in the 
preparation of EAs; the manner in which they do so is left to the 
agency).
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    The scoping process can be particularly helpful in identifying 
opportunities to coordinate reviews and related surveys and studies 
required by other laws or by executive orders. Scoping should also be 
used to begin inter- and intra-governmental coordination if it is not 
already ongoing. To accomplish these goals, the lead agency preparing 
an EA or an EIS can choose to 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).'' \47\ In addition to facilitating coordination and the 
development of required environmental reviews, scoping will help to 
identify the universe of matters that need to be addressed with 
particular care and flag issues for thorough consideration, thereby 
defusing potential conflict that, absent early attention, could arise 
later and potentially delay the timely completion of the relevant NEPA 
review.\48\
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    \47\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing 
cooperating agency status is discussed in greater detail in the CEQ 
Memorandum for Heads of Federal Agencies, ``Cooperating Agencies in 
Implementing the Procedural Requirements of the National 
Environmental Policy Act,'' 30 January 2002 available at 
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
    \48\ In cases where a Federal agency uses scoping for an EA and 
subsequently determines it is necessary to conduct an EIS, the 
agency should refer to the guidance provided in the CEQ Memorandum 
to Agencies, ``Forty Most Asked Questions Concerning CEQ's National 
Environmental Policy Act Regulations'' (Question and Answer 13), 
March 16, 1981, available at http://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (scoping that is done before the assessment, and in aid of 
its preparation, cannot substitute for the normal scoping process 
after publication of the NOI, unless the earlier public notice 
stated clearly that this possibility was under consideration, and 
the NOI expressly provides that written comments on the scope of 
alternatives and impacts will still be considered).
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    In sum, the scoping process provides an early opportunity to plan 
collaboration with other governments,\49\ assign responsibilities,\50\ 
and develop the planning and decisionmaking schedule.\51\ It also 
affords lead agencies the option of setting page limits for 
environmental documents and setting time limits for the steps in the 
NEPA process.\52\ Agencies may also choose to use scoping whenever any 
of these techniques can provide for the more effective and efficient 
preparation of an EA.
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    \49\ 40 CFR 1501.6 and 1508.5. CEQ has published guidance 
encouraging lead agencies to establish a formal cooperating agency 
relationship with other Federal agencies as well as State, Tribal, 
and local governmental entities. CEQ memorandum, ``Cooperating 
Agencies in Implementing the Procedural Requirements of the National 
Environmental Policy Act,'' January 30, 2002, available at 
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
    \50\ 40 CFR 1501.7(a)(4) (a lead agency may allocate 
responsibility for EIS preparation and analysis among cooperating 
agencies during scoping).
    \51\ 40 CFR 1501.7(a)(7).
    \52\ 40 CFR 1501.7(b)(1)-(2), 1501.8.
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    4. Inter-Governmental Coordination (State, Local, or Tribal 
Environmental Reviews): CEQ encourages Federal agencies to collaborate 
with Tribal, State, and local governments to the fullest extent 
possible to reduce duplication, unless the agencies are specifically 
barred from doing so by some other law.\53\ The CEQ Regulations 
explicitly provide for agencies to conduct joint planning processes, 
joint environmental research and studies, joint public hearings (except 
where otherwise provided by statute), and joint environmental 
assessments.\54\ Federal agencies should explore every reasonable 
opportunity to integrate the requirements of NEPA with the external 
planning and environmental reviews required on the Federal as well as 
the State, Tribal, and local levels of

[[Page 77497]]

government so that those reviews can run concurrently rather than 
consecutively.\55\
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    \53\ 40 CFR 1506.2(b).
    \54\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging 
Federal agencies to eliminate duplication with State and local 
procedures, by providing for joint preparation).
    \55\ 40 CFR 1500.2(c). This point is reiterated throughout the 
CEQ Regulations.
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    Where State law or local ordinances contain environmental impact 
analysis and documentation requirements in addition to, but not in 
conflict with, those in NEPA, the CEQ Regulations provide authority for 
producing joint EISs.\56\ In such cases, Federal agencies shall 
cooperate in fulfilling the State, Tribal, and local environmental 
impact analysis and documentation requirements as well as the 
requirements of other environmental laws so that one document will 
suffice for complying with as many applicable laws as practicable. 
Federal agencies should seek efficiencies and avoid delay by attempting 
to meet applicable non-Federal NEPA-like requirements in conjunction 
with either an EA or an EIS wherever possible.
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    \56\ 40 CFR 1506.2(c).
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    The CEQ Regulations also require that a Federal agency preparing an 
EIS better integrate the EIS into non-Federal planning processes by 
discussing and explaining any inconsistency of a proposed Federal 
action with any approved State or local plan and laws.\57\ When 
preparing an EA or EIS, if an inconsistency with any approved Tribal, 
State, or local plan or laws exists, the Federal agency should describe 
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\58\
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    \57\ 40 CFR 1506.2(d).
    \58\ 40 CFR 1506.2(d).
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    5. Coordinating Reviews and Documents Under Other Applicable Laws: 
Agencies must integrate, to the fullest extent possible, their draft 
EIS with environmental impact analyses and related surveys and studies 
required by other laws or by executive order.\59\ Coordinated and 
concurrent environmental reviews are appropriate whenever other 
analyses, surveys, and studies will consider the same issues and 
information as a NEPA analysis. Such coordination should be considered 
when preparing an EA as well as when preparing an EIS.
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    \59\ 40 CFR 1502.25(a). Examples provided in the Regulation are: 
the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the 
National Historic Preservation Act (16 U.S.C. 470 et seq.); and the 
Endangered Species Act (16 U.S.C. 1531 et seq.).
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    The goal should be to conduct concurrent rather than sequential 
processes whenever appropriate. In situations where one aspect of a 
project is within the particular expertise or jurisdiction of another 
agency an agency should consider whether adoption or incorporation by 
reference of materials prepared by the other agency would be more 
efficient.
    A coordinated or concurrent process may provide a better basis for 
informed decision making, or at least achieve the same result as 
separate or consecutive processes while avoiding unnecessary 
duplication of effort. In addition to integrating the reviews and 
analyses, the CEQ Regulations also state that any environmental 
document that complies with NEPA may be combined with any other agency 
document to reduce duplication and paperwork.\60\
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    \60\ 40 CFR 1506.4; see also 40 CFR 1500.4(k), (n).
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    6. Adoption: The adoption of one Federal agency's EIS, or a portion 
of that EIS, by another Federal agency is an efficiency that the CEQ 
Regulations provide.\61\ An agency preparing an EA should similarly 
consider adopting another agency's EA when the EA or a portion thereof 
addresses the proposed action and meets the standards for an adequate 
EA under NEPA, the CEQ's Regulations, and the adopting agency's NEPA 
implementing procedures.
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    \61\ 40 CFR 1506.3.
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    The CEQ Regulations require agencies to involve agencies, 
applicants and the public; however, they do not require agencies to 
prepare a draft EA and circulate a draft or final EA for public review 
or comment.\62\ If an agency's implementing NEPA procedures establish 
requirements for public review and comment when preparing an EA, 
however, then the adopting agency must provide a similar process when 
it adopts the preparing agency's EA.
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    \62\ 40 CFR 1501.4(b) and 1506.6 (Agencies are to involve the 
public in the preparation of EAs, the manner in which they do so is 
left to the agency).
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    In those cases where the adopting agency is also a cooperating 
agency in the preparation of an EIS, it may adopt the lead agency's EIS 
without additional public involvement when, after an independent 
review, it concludes that the lead agency has adequately addressed the 
adopting agency's comments and suggestions.\63\ Similarly, when the 
adopting agency was a cooperating agency in the preparation of an EA, 
it may adopt the EA without additional public involvement.
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    \63\ 40 CFR 1506.3(c).
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    7. Incorporation by Reference: Incorporation by reference is 
another method that provides efficiency and timesaving when preparing 
either an EA or an EIS. The CEQ Regulations direct agencies to 
incorporate material into an EIS by reference to reduce the size of the 
EIS and avoid duplicative effort.\64\ An agency must cite the 
incorporated material in an EIS and briefly describe the content.\65\ 
An agency may not incorporate any material by reference in an EIS 
unless the material is reasonably available for inspection by 
potentially interested persons within the time allowed for comment.\66\ 
Agencies can, consistent with NEPA and the CEQ Regulations, incorporate 
documents into an EA by reference provided the content has been briefly 
described and the materials are reasonably available for review by 
interested parties.
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    \64\ 40 CFR 1502.21.
    \65\ 40 CFR 1502.21.
    \66\ 40 CFR 1502.21 (material based on proprietary data which is 
itself not available for review and comment cannot be incorporated 
by reference).
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    8. Expediting Responses to Comments: Agencies should provide a 
reasonable and proportionate response to comments on a draft EIS by 
focusing on the environmental issues and information conveyed by the 
comments. When preparing a final EIS, if the draft EIS complies with 
NEPA, CEQ regulations, and agency implementing procedures, the agency 
may use the draft EIS as the final EIS under certain conditions. If 
changes in response to comments are minor and are limited to factual 
corrections and/or explanations of why the comments do not warrant 
further agency response, agencies may write them on errata sheets and 
attach them to the statement instead of rewriting the draft 
statement.\67\ In such cases, the agency must circulate only the 
comments, the responses and the changes, and not the final 
statement.\68\ Only the comments, responses, and changes need be filed 
with the draft document and a new cover sheet to make the EIS final, 
under those circumstances.\69\ Similarly, if an agency issues an EA for 
comment and the changes in response to comments are minor and limited 
to factual corrections and/or explanations of why the comments do not 
warrant further agency response, then the agency may prepare a similar 
cover and errata sheet and use its draft EA as the final EA.
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    \67\ 40 CFR 1503.4(c); see also 40 CFR 1500.4(m).
    \68\ 40 CFR 1503.4(c).
    \69\ 40 CFR 1503.4(c).
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    9. Clear Time Lines for NEPA Reviews: Establishing appropriate time 
limits promotes the efficiency of the NEPA process.\70\ The CEQ 
Regulations do not prescribe universal time limits for the entire NEPA 
process; instead they set certain minimum time limits for the various 
portions of the NEPA process.\71\ The CEQ Regulations do

[[Page 77498]]

encourage Federal agencies to set appropriate time limits for 
individual actions, however, and provide a list of factors to consider 
in establishing timelines.\72\ Those factors include: the potential for 
environmental harm; the size of the proposed action; other time limits 
imposed on the action by other laws, regulations, or executive orders; 
and the degree of public need for the proposed action and the 
consequences of delay. The CEQ Regulations refer to the EIS process 
when describing the ``constituent parts of the NEPA process'' to which 
time limits may apply, require agencies to set time limits at the 
request of an applicant, and allow agencies to set time limits at the 
request of other interested parties.\73\ It is entirely consistent with 
the purposes and goals of NEPA and with the CEQ Regulations for 
agencies to also determine appropriate time limits for the EA process 
when requested by applicants, Tribes, States, local agencies, or 
members of the public.
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    \70\ 40 CFR 1500.5(e).
    \71\ 40 CFR 1506.10 (setting 90 day time period between EPA 
publication of the notice of availability of a draft EIS and the 
Record of Decision, 30 day time period between EPA publication of 
the notice of availability of a final EIS and the Record of 
Decision, and 45 days for comment on a draft EIS).
    \72\ 40 CFR 1501.8 (CEQ encourages Federal agencies to set time 
limits consistent with the time intervals required by Sec.  
1506.10).
    \73\ 40 CFR 1501.8(a) and (c).
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    Conclusion: This guidance describes methods provided in the CEQ 
regulations that agencies preparing an EA or an EIS may employ to 
prepare concise and timely NEPA reviews. Using methods such as 
integrating planning and environmental reviews and permitting, 
coordinating multi-agency or multi-governmental reviews and approvals, 
and setting schedules for completing the environmental review will 
assist agencies in preparing efficient and timely EAs and EISs 
consistent with legal precedent and agency NEPA experience and 
practice.

Nancy H. Sutley,
Chair.
[FR Doc. 2011-31983 Filed 12-12-11; 8:45 am]
BILLING CODE 3225-F2-P