[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Rules and Regulations]
[Pages 14473-14480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5812]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1505, 1506, 1507, and 1508
Final 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, final guidance.
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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
final guidance on Improving the Process for Preparing Efficient and
Timely Environmental Reviews under the National Environmental Policy
Act. 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 that these
techniques are available for all NEPA Environmental Assessments and
Environmental Impact Statements. These techniques are consistent with a
thorough and meaningful environmental review and agencies using these
techniques should keep in mind the following basic principles: NEPA
encourages straightforward and concise reviews and documentation that
are proportionate to potential impacts and effectively convey the
relevant considerations in a timely manner to the public and decision
makers, while rigorously addressing the issues presented; NEPA shall be
integrated into project planning to ensure planning and decisions
reflect environmental considerations, avoid delays later in the
process, and anticipate and attempt to resolve issues, rather than be
an after-the-fact process that justifies decisions already made; 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 on appropriate issues that would be meaningful to
a decision on the proposed action; agencies are encouraged to develop
meaningful, predictable, 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
applies equally to the preparation of an Environmental Assessment or an
Environmental Impact Statement 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. It does provide CEQ's interpretation of existing
regulations promulgated under NEPA.
DATES: The guidance is effective March 12, 2012.
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. 4321-4346b, 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
[[Page 14474]]
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 implementing NEPA at 40 Code of Federal Regulations Parts
1500-1508 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,'' E.O. 13,563,
76 FR 3821 (January 21, 2011), available at 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 CEQ goals of
promoting techniques that will modernize the use of NEPA, enabling
agencies to more effectively and efficiently make use of the NEPA. 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 Federal, State, local, or
Tribal agencies and representatives as well as to coordinate reviews
and documents with other laws to allow for greater efficiency. It
further explains the procedures to adopt other Federal agency reviews
and to incorporate by reference information and analyses contained in
other documents, and emphasizes the need for reasonable and
proportionate responses to comments within the NEPA process. Finally,
the guidance recommends agencies use appropriate time limits to promote
efficiency. Thus, this guidance offers concrete tools for NEPA reviews
to facilitate a more targeted, efficient, and informative analysis of
environmental issues and impacts.
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 implementing NEPA.
The Federal Register notice announcing the draft Guidance on
Improving the Process for Preparing Efficient and Timely Environmental
Reviews under the National Environmental Policy Act was published on
December 13, 2011.\3\ CEQ appreciates the thoughtful responses to its
request for comments on the draft guidance. Commenters included private
citizens, corporations, environmental organizations, trade
associations, Federal agencies, and state agencies. CEQ received 61
comments, which are available online at www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments. The comments that
suggested editorial revisions and requested clarification of terms are
addressed in the text of the final guidance. Comments that raised
policy or substantive concerns are grouped into thematic issues and
addressed in the following sections of this notice.
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\3\ National Enviromental Policy Act (NEPA) Draft Guidance,
Improving the Process for Preparing Efficient and Timely
Environmental Reviews under the National Environmental Policy Act,
76 FR 77,492, Dec. 11, 2011.
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What's New in This Guidance
Many commenters felt that the draft guidance was merely a rehash of
previous guidance issued by the CEQ, with no new insights or procedures
for making the NEPA process more efficient. This guidance highlights
and focuses on the existing provisions under the CEQ Regulations
implementing NEPA and clarifies that they are available for the
preparation of Environmental Assessments, as well as Environmental
Impact Statements, so that Federal agencies can focus on specific
techniques that provide the best use of agency resources in ensuring a
timely, effective, and efficient NEPA review. This guidance applies
equally to the preparation of Environmental Assessments and
Environmental Impact Statements consistent with legal precedent and
agencies' NEPA experience and practice. It does not create or endorse
any new requirements or obligations that would lengthen the process.
Strength of Guidance
Comments on the strength of the draft guidance varied widely, with
some commenters finding that the guidance did not do enough to force
agencies to expedite review and other commenters feared the guidance
weakened the importance of NEPA for agency decision making. The
guidance reinforces and clarifies what Federal agencies should do, and
are already allowed to do, under NEPA and the CEQ's NEPA implementing
regulations. For example, the second principle on integrating NEPA with
planning now states that agencies ``shall'' integrate NEPA into project
planning which reflects the direction provided in current regulations.
When Congress enacted NEPA, it charged CEQ with interpreting the
statute. Pursuant to its authority, over the years CEQ has issued
guidance on a variety of topics. Today's guidance provides CEQ's
interpretation of its already established regulations promulgated for
NEPA implementation and does not change agencies' obligations with
regard to those regulations.
Public Participation
Some comments desired further emphasis on the public participation
component of NEPA as a part of this guidance, or felt that the lack of
public participation guidance in this document suggested that public
participation is not viewed by the CEQ to be an integral part of the
NEPA process. The CEQ believes that public participation is a crucial
and integral part of NEPA, and the portions of this guidance which
address public participation do nothing to change or deemphasize this
fact. The focus of much of this guidance is on the review and
implementation procedures of agencies, especially the physical writing
of NEPA documents and internal agency review procedures which do not
have a direct interaction with the public. Earlier CEQ guidance has
emphasized the importance of public participation; see, for example the
guidance for developing and using categorical exclusions available at
http://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
The Final Guidance
For reasons stated in the preamble, above, CEQ issues the following
guidance on Improving the Process for Preparing Efficient and Timely
Environmental Reviews under the National Environmental Policy Act. The
final guidance is provided here and is available on the National
Environmental Policy Act Web site (http://www.nepa.gov) at http://
ceq.hss.doe.gov/ceq_regulations/guidance.html and on the CEQ Web site
at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.
[[Page 14475]]
Memorandum for Heads of Federal Departments and Agencies
FROM: NANCY H. SUTLEY, Chair, Council on Environmental Quality
SUBJECT: Improving the Process for Preparing Efficient and Timely
Environmental Reviews Under the National Environmental Policy Act
A wide array of tools is available to meet the goal of high
quality, efficient, and timely environmental reviews under the National
Environmental Policy Act (NEPA). 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) provide efficiencies that can also be used to prepare
an Environmental Assessment (EA). This guidance applies equally 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 and in their own
agency NEPA implementing procedures in a way that is mindful of the
following basic principles:
NEPA encourages straightforward and concise reviews and
documentation that are proportionate to potential impacts and
effectively convey the relevant considerations to the public and
decisionmakers in a timely manner while rigorously addressing the
issues presented;
NEPA shall be integrated into project planning to ensure
planning and decisions reflect environmental considerations, avoid
delays later in the process, and anticipate and attempt to resolve
potential issues rather than be an after-the-fact process that
justifies a decision already made;
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 on appropriate issues that would be meaningful to
a decision;
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.\4\ Our ongoing
review of the CEQ Regulations confirms the benefits of integrating
environmental reviews into the decisionmaking process, 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 provides CEQ's interpretation of existing
regulations promulgated under NEPA, and does not change agencies'
obligations with regard to NEPA and the CEQ Regulations.\5\
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\4\ Improving Regulation and Regulatory Review, E.O. No. 13,563,
76 Fed. Reg. 3,821 (Jan. 21, 2011), available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
\5\ 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 implementing NEPA.\6\ 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.\7\ These guidance documents represent CEQ's
interpretation of NEPA, which the U.S. Supreme Court has said is
``entitled to substantial deference.'' \8\
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\6\ The Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, 40 CFR parts 1500-1508 (2011) [hereinafter CEQ
Regulations], available on www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/regulations.html.
\7\ These guidance documents are available online at
ceq.hss.doe.gov/ceq_regulations/guidance.
\8\ 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 and the public 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.'' \9\
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\9\ 40 CFR 1500.1(c).
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NEPA compliance can take three forms, a Categorical Exclusion, an
EA, or an EIS:
Categorical Exclusion (CE): A CE describes a category of
actions that are expected not to have individually or cumulatively
significant environmental impacts.\10\ 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
does not require further analysis and documentation in an EA or an
EIS.\11\ A CE can be used after determining that a proposed action
falls within the categories of actions described in the CE and that
there are no extraordinary circumstances indicating further
environmental review is warranted.
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\10\ Categorical exclusions can also be created through
legislation.
\11\ 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 made, then the NEPA review process is completed with the
FONSI, including documentation of its basis in the EA; otherwise an EIS
is prepared.\12\
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\12\ 40 CFR 1508.9.
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Environmental Impact Statement (EIS): The most intensive
level of analysis is the EIS, 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.\13\
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\13\ 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.\14\
Properly developed and applied, CEs provide an efficient
[[Page 14476]]
tool to complete the NEPA environmental review process for proposals
that normally do not require more resource-intensive EAs or EISs. The
use of CEs can reduce paperwork and delay for proposed actions that do
not raise the potential for significant environmental effects.\15\ In
January 2011, CEQ provided guidance that specifically addressed the
appropriate use of a FONSI or mitigated FONSI to conclude a 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.\16\ 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.\17\
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\14\ CEQ, ``Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act'' (Nov. 23,
2010), available at http://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf">ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
\15\ See 40 CFR 1500.4(p) (recommending categorical exclusions
as a tool to reduce paperwork) and 1500.5(k) (recommending
categorical exclusions as a tool to reduce delay).
\16\ CEQ, ``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\17\ CEQ, ``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.'' \18\ This
guidance sets forth straightforward means by which the CEQ Regulations
support these strategies.
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\18\ Presidential Memorandum, ``Speeding Infrastructure
Development Through More Efficient and Effective Permitting and
Environmental Review'' (Aug. 31, 2011), available at
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 relevant environmental
analysis in their EAs and EISs, not to produce an encyclopedia of all
applicable information.\19\ Environmental analysis should focus on
significant issues, discussing insignificant issues only briefly.\20\
Impacts should be discussed in proportion to their significance, and if
the impacts are not deemed significant there should be only enough
discussion to show why more study is not warranted.\21\ Scoping,\22\
incorporation by reference,\23\ and integration of other environmental
analyses \24\ are additional methods that may be used to avoid
redundant or repetitive discussion of issues.\25\
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\19\ 40 CFR 1500.4(b), 1502.2(b).
\20\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a)
(``Environmental impact statements shall be analytic rather than
encyclopedic.'').
\21\ 40 CFR 1502.2(b).
\22\ 40 CFR 1500.4(g).
\23\ 40 CFR 1500.4(j).
\24\ 40 CFR 1500.4(k).
\25\ See generally 40 CFR 1502.1 (EISs should be written in
clear language so that decisionmakers and the public can understand
them).
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All NEPA environmental documents, not just EISs, shall be written
in plain language,\26\ follow a clear format, and emphasize important
impact analyses and information necessary for those analyses rather
than providing extensive background material. Clarity and consistency
ensure that the substance of the agency's analysis is understood,
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.\27\
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\26\ 40 CFR 1502.8; see also www.plainlanguage.gov.
\27\ 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 to appendices the relevant studies and technical analyses used
to support the determinations and conclusions reached in the EIS) 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.\28\
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\28\ 40 CFR 1502.2(c) (EISs ``shall be kept concise and * * *
[l]ength 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.\29\ 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 as well as the
extent to which the determination of no significant impact relies on
mitigation, rather than just with the scope and scale of the proposed
action.\30\ The EA should be no more detailed 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.\31\
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\29\ See CEQ, ``Forty Most Asked Questions Concerning CEQ's
National Environmental Policy Act Regulations'' (Mar. 16, 1981),
available at ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36 (Question 36a
and Answer). Note that at the time of Forty-Questions 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. See Id. (Question 40 and Answer). CEQ
has since published guidance accepting mitigated FONSIs as another
means of efficiently concluding the NEPA process without producing
an EIS. CEQ, ``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\30\ See 40 CFR 1508.9 (stating the EA is ``a concise public
document'') and 40 CFR 1502.2(c) (interpreting the conciseness
requirement for an EIS to mean that ``[l]ength should vary first
with potential environmental problems and then with project size'').
\31\ 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
[[Page 14477]]
attempt to resolve potential issues.\32\ NEPA should not become an
after-the-fact process that justifies decisions that have already been
made.\33\
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\32\ 40 CFR 1501.2.
\33\ 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 an agency issues a
notice of intent to seek useful information on a proposal from agencies
and the public.\34\ 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.\35\ 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.'' \36\
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\34\ See CEQ Memorandum to Agencies, ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13 (Question 13 and Answer).
\35\ See 40 CFR 1508.23 (explaining that a proposal exists as
soon as an agency ``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'').
\36\ 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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To prepare efficient EAs, agencies should adhere to these same
principles and ensure that the EA is prepared in conjunction with the
development of the proposed action 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 planning and management to the fullest
extent possible.
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.\37\ The Regulations require Federal agencies
to address these situations in their NEPA implementing procedures.\38\
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 entities of studies or other information foreseeably
required for later Federal action.\39\
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\37\ See 40 CFR 1501.2(d) (non-Federal entities plan activities
prior to Federal involvement that trigger NEPA requirements).
\38\ 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, ``Agency Implementing Procedures Under CEQ's NEPA
Regulations'' (Jan. 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:
Managing the NEPA Process--National Park Service'' (May 27, 2004),
available at http://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior,
``Departmental Manual: Managing the NEPA Process--Bureau of Land
Management'' (May 8, 2008), available at http://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
\39\ 40 CFR 1501.2(d)(1).
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Advanced planning prior to Federal involvement in an action 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.\40\ 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.\41\ 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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\40\ 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.
\41\ 40 CFR 1501.2(d)(3).
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3. Scoping
To effectuate integrated decision making, avoid duplication, and
focus the NEPA review, the CEQ Regulations provide for ``scoping.''
\42\ In scoping, the lead agency determines the issues that the EA or
EIS will address and identifies the significant impacts related to the
proposed action that will be considered in the analysis.\43\ 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.\44\
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\42\ See 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.'').
\43\ 40 CFR 1500.4(b), (g) and 1501.7.
\44\ See 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). CEQ has
released previous guidance on engaging other agencies with
jurisdiction over permits and other approvals required for a
proposal to proceed. CEQ, ``Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act''
(Jan. 30, 2002), available at ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; CEQ, ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14 (Question and Answer 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 whenever preparing an EA. Scoping can be particularly useful
when an EA deals with uncertainty or controversy regarding potential
conflicts over the use of resources or the environmental effects of the
proposed action, or where mitigation measures are likely to play a
large role in determining whether the impacts will be reduced to a
level where a Finding of No Significant Impact can be made. A lead
agency preparing 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.\45\ The scoping process provides
a transparent way to identify significant environmental issues and to
deemphasize insignificant issues,\46\ thereby focusing the analysis on
the most pertinent issues and impacts.\47\ We recommend that agencies
review their NEPA implementing procedures, as well
[[Page 14478]]
as their NEPA practices, to ensure they have the option of scoping for
EAs.
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\45\ 40 CFR 1501.7(a)(3).
\46\ 40 CFR 1500.4(g).
\47\ See generally 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 can 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).'' \48\ 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 and agency decision.\49\
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\48\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing
cooperating agency status is discussed in greater detail in a CEQ
memorandum addressed to the heads of Federal agencies, entitled
``Cooperating Agencies in Implementing the Procedural Requirements
of the National Environmental Policy Act.'' CEQ, ``Cooperating
Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act'' (Jan. 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\49\ 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 previously published by the CEQ.
See CEQ, ``Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations'' (Mar. 16, 1981), available at
ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (Question 13 and the
following answer state that scoping done before the assessment, and
in aid of its preparation, cannot substitute for the normal scoping
process after publication of the notice of intent, unless the
earlier public notice stated clearly that this possibility was under
consideration, and the notice of intent 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,\50\ assign responsibilities,\51\
and develop the planning and decisionmaking schedule.\52\ 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.\53\ Agencies may 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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\50\ 40 CFR 1501.6, 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, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act'' (Jan. 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\51\ See, e.g., 40 CFR 1501.7(a)(4) (a lead agency may allocate
assignments for EIS preparation and analysis among cooperating
agencies during scoping).
\52\ 40 CFR 1501.7(a)(7).
\53\ 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.\54\ The CEQ Regulations explicitly provide for
agencies to conduct joint planning processes, joint environmental
research and studies, joint public hearings (except where otherwise
precluded by statute), and joint environmental assessments.\55\ 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 government so that those reviews can run concurrently rather
than consecutively.\56\
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\54\ 40 CFR 1506.2(b) (calling for collaboration ``to the
fullest extent possible'').
\55\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging
Federal agencies to eliminate duplication with State and local
procedures through joint preparation of documents).
\56\ 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.\57\ In such cases, Federal agencies shall
cooperate with the State, Tribal, and local governments to integrate
environmental impact analysis and documentation requirements so that
one document will suffice for complying with as many applicable
environmental laws and requirements as practicable. Agencies should
adhere to these same principles when preparing an EA. 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.\58\
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\57\ 40 CFR 1506.2(c).
\58\ Although joint processes usually lead to greater efficiency
and better decisionmaking, a joint process may become unwieldy and
the result is that, for some projects, combining a State and Federal
process is not practical.
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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 plans and laws.\59\ When
preparing an EA or EIS, if an inconsistency with any approved Tribal,
State, or local plan or law exists, the Federal agency should describe
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\60\
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\59\ 40 CFR 1506.2(d).
\60\ 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 statutes or Executive Orders.\61\ 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. Techniques
available to agencies when coordinating a combined or a concurrent
process include combining the scoping, requests for public comment, and
preparation and display of responses to public comments.
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\61\ 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 more quickly and with less potential
for unnecessary duplication of effort. In addition to integrating the
reviews and analyses, the CEQ Regulations allow an environmental
document that complies with NEPA to
[[Page 14479]]
be combined with a subsequent agency document to reduce duplication and
paperwork.\62\
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\62\ 40 CFR 1506.4, 1500.4(k), 1500.4(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.\63\ An agency preparing an EA should similarly consider
adopting another agency's EA or EIS when the EA or EIS, or a portion
thereof, addresses the proposed action and meets the standards for an
adequate analysis under NEPA, the CEQ's Regulations, and the adopting
agency's NEPA implementing procedures.
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\63\ 40 CFR 1506.3.
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The CEQ Regulations require agencies to involve agencies,
applicants, and the public when preparing an EA; however, they do not
require agencies to do so by preparing a draft or final EA for public
review or comment.\64\ If an agency's implementing NEPA procedures
establish requirements for public review and comment when preparing an
EA, then the agency must provide a similar process when it adopts
another agency's EA, but may use the same efficiencies that are
available when adopting another agency's EIS.
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\64\ See generally 40 CFR 1501.4(b), 1506.6 (both regulations
direct agencies to involve the public in the preparation of EAs;
however, the manner in which they do so is left to the agency).
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If the actions covered by the original EIS and the proposed action
are substantially the same, the agency adopting the EIS is not required
to recirculate the EIS as a draft for public review and comment. The
same is true for the adoption of another agency's EA when the original
and proposed actions are substantially the same. In addition, in 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
recirculating the EIS as a draft or as a final EIS when, after an
independent review, it concludes that the lead agency has adequately
addressed the adopting agency's comments and suggestions.\65\
Similarly, when the adopting agency was a cooperating agency in the
preparation of an EA, it may adopt the EA without recirculating the EA.
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\65\ 40 CFR 1506.3(c).
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7. Incorporation by Reference \66\
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\66\ This guidance does not address tiering. Further guidance
will be developed to address the use of broad, programmatic,
analyses to focus future reviews and the subsequent, tiered, review
of site- or project- specific proposed actions.
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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 by reference material
into an EIS to reduce the size of the EIS and avoid duplicative
effort.\67\ An agency must provide a citation that clearly identifies
the incorporated material in an EIS and briefly describe the
content.\68\ The brief description should identify the referenced
materials and the entity (Federal or non-Federal) that prepared the
materials, inform the reader of the purpose and value of those
materials (e.g., explain how the information or analyses are relevant
to the issues associated with the proposal under review), and synopsize
the basis provided in those materials that support any conclusions
being incorporated. 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.\69\ There are many techniques available to make the
referenced material readily available such as: Placing the relevant
materials in an appendix; providing a hyperlink that provides Internet
access to the materials; and placing materials in local libraries or
facilities accessible to the public. Agencies can, consistent with NEPA
and the CEQ Regulations, incorporate by reference analyses and
information from existing documents into an EA provided the material
has been appropriately cited and described, and the materials are
reasonably available for review by interested parties.
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\67\ 40 CFR 1502.21.
\68\ 40 CFR 1502.21.
\69\ 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.\70\ In such cases, the agency must
circulate and make available for public review as the final EIS only
the comments, the responses and the changes.\71\ The comments,
responses, and changes, as well as the draft document and a new cover
sheet need to be filed to make the EIS final, under those
circumstances.\72\
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\70\ 40 CFR 1503.4(c), 1500.4(m).
\71\ 40 CFR 1503.4(c).
\72\ 40 CFR 1503.4(c).
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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. When circulating draft EAs or
EISs for public review and comment, we recommend agencies facilitate
public review and comment by also publishing the EISs and EAs, and
subsequently the comments received, on agency Web sites.
9. Clear Time Lines for NEPA Reviews
Establishing appropriate and predictable time limits promotes the
efficiency of the NEPA process.\73\ The CEQ Regulations recommend that
agencies designate a person (such as a project manager or a person in
the agency's office with NEPA responsibilities) to lead and shepherd
the NEPA review to expedite the process.\74\ 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.\75\ The CEQ Regulations do encourage Federal agencies to
set appropriate time limits for individual actions, however, and
provide a list of factors to consider in establishing timelines.\76\
Those factors include: The potential for environmental harm; the size
of the proposed action; other time limits imposed on the action by
other statutes, regulations, or Executive Orders; the degree of public
need for the proposed action and the consequences of delay; and the
need for a reasonable opportunity for public review.
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\73\ 40 CFR 1500.5(e).
\74\ 40 CFR 1501.8(b)(3).
\75\ See 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).
\76\ CEQ encourages Federal agencies to set time limits
consistent with the time intervals required by Sec. 1506.10. 40 CFR
1501.8.
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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
[[Page 14480]]
of an applicant, and allow agencies to set time limits at the request
of other interested parties.\77\ It is entirely consistent with the
purposes and goals of NEPA and with the CEQ Regulations for agencies to
consider the same factors and determine appropriate time limits for the
various phases of the EA process when requested by applicants, Tribes,
States, local agencies, or members of the public.
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\77\ 40 CFR 1501.8(b), (c).
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Conclusion
This guidance highlights for agencies preparing either an EA or an
EIS the ability to employ all the methods provided in the CEQ
regulations 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, Council on Environmental Quality.
[FR Doc. 2012-5812 Filed 3-9-12; 8:45 am]
BILLING CODE 3225-F2-P