[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Proposed Rules]
[Pages 50578-50589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20199]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1505, 1506, 1507, and 1508
Effective Use of Programmatic NEPA Reviews
AGENCY: Council on Environmental Quality.
ACTION: Notice of Availability, Request for Public Comments on Draft
Guidance on Effective Use of Programmatic National Environmental Policy
Act Reviews.
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SUMMARY: The Council on Environmental Quality (CEQ) is publishing draft
guidance on when and how Federal agencies can effectively use National
Environmental Policy Act (NEPA) programmatic reviews. Guidance on
programmatic NEPA reviews has been requested by the agencies and
attention on programmatic NEPA reviews has increased as agencies are
increasingly undertaking broad landscape scale analyses for proposals
that affect the resources they manage. This guidance is designed to
assist agency decision-makers and the public
[[Page 50579]]
in understanding the environmental impacts from proposed large-scope
Federal actions and activities and to facilitate agency compliance with
NEPA by clarifying the different planning scenarios under which an
agency may prepare a programmatic, broad-scale, review. The guidance
also addresses how agencies can prepare such reviews to ensure they are
timely, informative, and useful for advancing decision-making.
The goal of this guidance is to encourage a more consistent
approach to programmatic NEPA reviews so that the analyses and
documentation will allow for the expeditious and efficient completion
of any necessary tiered reviews. It builds on guidance issued since
1981 that explained the use of tiering and its place in the NEPA
process.
DATES: Submit comments on or before October 9, 2014.
ADDRESSES: The NEPA Draft Guidance Documents are available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/and http://www.nepa.gov. Submit electronic comments on the NEPA Draft Guidance
``Effective Use of Programmatic NEPA Reviews'' to http://www.whitehouse.gov/webform/submit-comments-draft-guidance-programmatic-nepa-reviews, or in writing to The Council on Environmental Quality,
Attn: Horst Greczmiel, 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: This draft guidance will apply to Federal
agencies in accordance with sections 1507.2 and 1507.3 of the CEQ
Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 40 CFR Parts 1500-1508. The National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370, enacted in 1970,
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 decisions before acting. Additionally,
NEPA emphasizes public involvement in government actions affecting the
environment by requiring that the benefits and risks associated with
proposed actions be assessed and publicly disclosed.
CEQ, which is charged with overseeing NEPA, recognizes that NEPA is
a visionary and versatile law that can be used effectively to address
new environmental challenges facing our nation and also to engage the
public widely and effectively. Programmatic NEPA reviews are one method
of NEPA implementation that merits increased attention and use to
facilitate agency compliance with NEPA, and enhance the quality of
public involvement in governmental decisions relating to the
environment. For example, programmatic NEPA environmental reviews
provide another mechanism for agencies to address efforts on improving
environmental reviews for various sectors and types of Federal
activities such as infrastructure \1\ and disaster recovery.\2\ In
March 2012, CEQ published guidance focused on improving the efficiency
and timeliness of NEPA environmental reviews \3\ and this guidance
provides NEPA practitioners with another tool to improve the
effectiveness and efficiency of NEPA reviews.
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\1\ See Federal Infrastructure Projects, Permitting Dashboard,
available at http://www.permits.performance.gov/.
\2\ See Unified Federal Review, available at http://achp.gov/unified_federal_review.html.
\3\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the
National Environmental Policy Act (March 6, 2012), available at
http://ceq.hss.doe.gov/current_developments/docs/Improving_NEPA_Efficiencies_06Mar2012.pdf.
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CEQ interprets its regulations as allowing for the use of a
programmatic review in an Environmental Assessment (EA) as well as in
an Environmental Impact Statement (EIS). A programmatic NEPA review may
be appropriate when the action being considered falls into any one of
the categories of Federal actions subject to NEPA, including: (1)
Adopting official policy; (2) adopting formal plans; (3) adopting
agency programs; and (4) approving multiple actions.
CEQ is seeking public comment on this guidance for 45 days. The
draft guidance and Appendix A which provides a table of key
distinctions between programmatic and the subsequent tiered NEPA
reviews are available for review and comment here and at the CEQ Web
site at http://www.whitehouse.gov/administration/eop/ceq/initiatives/.
Appendices B (CEQ regulations and guidance relevant to programmatic
reviews) and C (examples of successful programmatic NEPA reviews) are
also available for review on that Web site. CEQ welcomes your comments
and any suggestions on all the Appendices.
Public comments are requested on or before October 9, 2014. CEQ
intends to make all comments received available online without change,
including any personal information provided, unless the comment
includes information claimed to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Please do not include any personal information or any information that
you consider to be Confidential Business Information or otherwise
protected as part of a public comment.
Dated: August 14, 2014.
Michael J. Boots,
Acting Chair, Council on Environmental Quality.
Effective Use of Programmatic NEPA Reviews
I. Introduction
A. Purpose of This Guidance
B. The Nature of Programmatic NEPA Reviews
II. Programmatic NEPA Reviews in the Council on Environmental
Quality Regulations
III. When to Use a Programmatic and Tiered NEPA Review
IV. Practical Considerations for Programmatic Reviews and Documents
A. Determining the Scope of the Programmatic NEPA Review
1. Purpose and Need
2. Scope of Analysis
3. The Proposed Action
4. The Alternatives
5. The Impacts
B. Collaboration, Public Engagement, and Coordination With Other
Environmental Reviews
1. The Importance of Collaboration and Cooperation
2. Public Involvement
3. Coordination With Other Environmental Reviews
C. Preparing the Documents
1. Programmatic Environmental Assessment or Programmatic
Environmental Impact Statement?
2. Level of Detail in Programmatic NEPA Documents
3. Depth of Impact Analysis in Programmatic NEPA Documents
D. Mitigation and Monitoring
E. Handling New Proposals While Preparing a Programmatic NEPA
Review
F. The Decision Document
V. Subsequent Proposal-Specific NEPA Reviews
A. Deferred Issues
B. Tiering NEPA Reviews
C. New Information and Supplementing Documents
VI. The Lifespan of a Programmatic NEPA Document
VII. Conclusions
Appendices
[[Page 50580]]
A. Table of Key Distinctions Between Programmatic and Tiered
Analyses
B. CEQ Regulations and Guidance
C. Sample Programmatic Analyses
I. Introduction
A programmatic National Environmental Policy Act (NEPA) review
should assist agency decision-makers and the public in understanding
the environmental impacts from proposed large scope Federal actions and
activities. The analyses in a programmatic review are valuable in
setting out the broad view of environmental harms and benefits, which
can then be relied upon when agencies make decisions based on the
Programmatic Environmental Assessment (PEA) or Programmatic
Environmental Impact Statement (PEIS),\4\ as well as decisions based on
a subsequent (tiered) \5\ NEPA review. Programmatic NEPA reviews should
result in clearer and more transparent decision-making, as well as
provide a better defined and more expeditious path toward decisions on
proposed actions. Agencies are encouraged to revise or amend their NEPA
implementing procedures, if necessary, to allow for analyses at a
programmatic level.
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\4\ The terms PEA and PEIS are also know by some Federal
agencies as generic or tier 1 NEPA review.
\5\ ``Tiering'' refers to an approach where federal agencies
first consider the broad, general impacts of proposed program, plan,
policy, or large scope project--or at the early stage of a phased
proposal--and then conduct subsequent, narrower, decision focused
reviews. See 40 CFR 1502.20 and 1508.28.
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A. Purpose of This Guidance
This guidance was prepared to assist Federal agencies to improve
and modernize their use of programmatic NEPA reviews (analysis and
documentation). The term ``programmatic'' describes any broad or high-
level NEPA review; it is not limited to a NEPA review for a particular
program.\6\ Programmatic NEPA reviews assess the environmental impacts
of proposed policies, plans, programs, or projects for which subsequent
actions will be implemented either based on the PEA or PEIS, or based
on subsequent NEPA reviews tiered to the programmatic review (e.g., a
site- or project- specific document). Programmatic NEPA reviews
designed to meet NEPA responsibilities for proposed actions without a
tiered review are governed by the same regulations and guidance that
apply to non-programmatic NEPA reviews. They should be developed and
their adequacy judged as a stand-alone final NEPA review. This guidance
addresses both programmatic NEPA reviews that make decisions applicable
to subsequent tiered NEPA reviews and programmatic NEPA reviews without
any subsequent review.
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\6\ For example, programmatic NEPA reviews are used when
agencies revise forest or land and resource management plans,
establish programs to eradicate or control invasive species, develop
infrastructure with a multijurisdictional footprint, or develop
multiple similar recovery projects following a major disaster.
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The programmatic approach under NEPA has not been fully used for
its intended purpose and when used, it often has not fulfilled agency
or stakeholder expectations.\7\ On March 6, 2012, the Council on
Environmental Quality (CEQ) published guidance highlighting the
efficiencies provided for in the CEQ Regulations Implementing the
Procedural Requirements of the National Environmental Policy Act (CEQ
Regulations) \8\ and received feedback from several stakeholders that
additional guidance on programmatic and tiered NEPA reviews would
provide a valuable addition to agency practices and procedures for
providing more timely and efficient NEPA reviews.\9\
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\7\ Council on Environmental Quality, National Environmental
Policy Act Task Force Report: Modernizing NEPA Implementation (Sept.
24, 2003) (finding that reliance on programmatic NEPA documents has
resulted in public and regulatory agency concern that programmatic
NEPA documents often result in a ``shell game'' of when and where
deferred issues will be addressed, undermining agency credibility
and public trust. The report found that the public may fail to
understand: (1) The significance of the broad decisions being
analyzed; and (2) that the specific details will be provided in
subsequent site-specific documents. On the other hand, when
programmatic NEPA documents are focused, some respondents fear that
some issues and analyses will be deferred and ultimately never
addressed. The NEPA Task Force found that agencies that provide the
greatest specificity in programmatic documents have the greatest
difficulty in maintaining the viability and durability of these
documents. This difficulty associated with maintaining document
relevancy has led some agencies as well as members of the public to
conclude that preparing programmatic NEPA documents is not cost
effective. The recommendation of the Task Force was that CEQ develop
advice to agencies on the analytical requirements associated with
the different uses of programmatic NEPA reviews, to foster agreement
and consistency between agency decisions and public expectations),
available at http://ceq.hss.doe.gov/ntf/20030929memo.pdf.
\8\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the
National Environmental Policy Act (March 6, 2012), available at
http://ceq.hss.doe.gov/current_developments/docs/Improving_NEPA_Efficiencies_06Mar2012.pdf.
\9\ 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, regulation, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory language such as ``recommend,'' ``may,''
``should,'' and ``can,'' is intended to describe CEQ policies and
recommendations. The use of mandatory terminology such as ``must''
and ``required'' is intended to describe controlling requirements
under the terms of NEPA and the CEQ Regulations, but this document
does not establish legally binding requirements in and of itself.
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This guidance is designed to provide practitioners with guidance to
assist in the preparation and proper use of programmatic NEPA reviews,
and help agencies inform and meet public expectations for programmatic
reviews that will enhance the focus and utility of public review and
comment. It builds on guidance issued in 1983 that explains the use of
tiering and its place in the NEPA process.\10\
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\10\ Council on Environmental Quality, Guidance Regarding NEPA
Regulations, Memorandum for Heads of Federal Agencies (July 28,
1983), available at http://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm.
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This new guidance focuses specifically on NEPA reviews and not on
other types of programmatic analyses. CEQ recognizes that analyses
conducted outside the context of NEPA can also play an important role,
for example, in assessing existing conditions. Although these types of
analyses may be used--either by incorporation by reference or as a
starting point for developing the NEPA review--an analysis prepared by
an agency is not a NEPA programmatic review unless that agency is
making decisions on a proposed Federal action. This important
distinction was explained in previous NEPA guidance which referred to a
non-NEPA programmatic review as a joint inventory or planning study:
In geographic settings where several Federal actions are likely to
have effects on the same environmental resources it may be advisable
for the lead Federal agencies to provide historical or other
baseline information relating to the resources. This can be done
either through a programmatic NEPA analysis or can be done
separately, such as through a joint inventory or planning study. The
results can then be incorporated by reference into NEPA documents
prepared for specific Federal actions so long as the programmatic
analysis or study is reasonably available to the interested
public.\11\
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\11\ Council on Environmental Quality, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June
24, 2005), available at http://ceq.hss.doe.gov/nepa/regs/Guidance_on_CE.pdf.
B. The Nature of Programmatic NEPA Reviews
A PEA or PEIS addresses the general environmental issues and
concerns at a broad policy or program level, and can effectively frame
the scope of subsequent site- and project-specific proposed Federal
actions. A well-crafted NEPA programmatic review provides
[[Page 50581]]
the basis for broad or high-level decisions such as identifying
geographically bounded areas within which future proposed activities
can be taken or identifying broad mitigation and conservation measures
that can be applied to subsequent tiered reviews.
One advantage of preparing a programmatic NEPA review for
repetitive agency activities is that the programmatic NEPA review can
effectively provide a starting point for the analysis of cumulative and
indirect impacts. Using such an approach allows an agency to
subsequently tier to this analysis, and address more narrow, site-
specific, details. This avoids repetitive broad level analyses in
subsequent tiered NEPA reviews and provides a more comprehensive
picture of the consequences of possible actions. An agency relying on a
programmatic NEPA review must consider whether the depth of analysis
needed for a tiered action requires adding to, or building on, the
analysis provided in the programmatic NEPA document. A programmatic
NEPA review can also be an effective means to narrow the consideration
of alternatives and impact discussions in a subsequent tiered NEPA
review.
Decision-makers may also call for a programmatic NEPA review for
other reasons. For example, programmatic analyses may serve to
influence the nature of subsequent decisions, thereby providing for an
integrated and sustainable policy, planning framework, or program.
Programmatic NEPA reviews may also support policy- and planning-level
decisions when there are limitations in available information and
uncertainty regarding the timing, location, and environmental impacts
of subsequent implementing action(s). For example, in the absence of
certainty regarding the environmental consequences of future tiered
actions, agencies may be able to make broad program decisions and
establish parameters for subsequent analyses based on a programmatic
review that adequately examines the reasonably foreseeable consequences
of a proposed program, policy, plan, or suite of projects.
II. Programmatic NEPA Reviews in Council on Environmental Quality
Regulations
The concept of ``programmatic'' NEPA reviews is imbedded in the CEQ
Regulations Implementing the Procedural Requirements of NEPA (CEQ
Regulations) that address analyses of ``broad actions'' and the tiering
process.\12\
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\12\ 40 CFR parts 1500-1508.
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The CEQ Regulations state in relevant part that environmental
impact statements may be prepared, and are sometimes required, for
broad Federal actions such as the adoption of new agency programs or
regulations, and that agencies shall prepare statements on broad
actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.\13\ The
regulations also state that when preparing statements on broad actions
(including proposals by more than one agency), agencies may find it
useful to evaluate the proposal(s) in one of the following ways:
geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area;
generically, including actions that have relevant similarities, such as
common timing, impacts, alternatives, methods of implementation, media,
or subject matter; or by stage of technological development, including
Federal or Federally assisted research, development or demonstration
programs for new technologies which, if applied, could significantly
affect the quality of the human environment.\14\ CEQ interprets its
regulations as allowing for the use of a programmatic approach in
developing an EA as well as in an EIS.
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\13\ 40 CFR 1502.4(b).
\14\ 40 CFR 1502.4(c).
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CEQ interprets its regulations as allowing for the use of a
programmatic approach in developing an EA as well as in an EIS.
In cases where a policy, plan, program, or broad project analysis
identifies but does not provide sufficiently in-depth analysis for
potential future actions, then subsequent analyses are appropriate and
are referred to as ``tiered'' analyses. Tiering is one way ``to relate
broad and narrow actions and to avoid duplication and delay.'' \15\
Appendix A provides a table of key distinctions between programmatic
and the subsequent tiered NEPA reviews, Appendix B provides the CEQ
regulations and guidance relevant to programmatic reviews, and Appendix
C contains examples of successful programmatic NEPA reviews.\16\
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\15\ 40 CFR 1502.4(d). Tiering is described at 40 CFR 1502.20
and further defined at 40 CFR 1508.28.
\16\ Appendices B & C available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/.
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III. When to Use a Programmatic and Tiered NEPA Review
Programmatic NEPA reviews add value and efficiency to the decision-
making process when they inform the scope of decisions and subsequent
tiered NEPA reviews. Programmatic NEPA reviews can facilitate decisions
on matters that precede site- or project-specific implementation, such
as mitigation commitments for subsequent actions, or narrowing of
future alternatives. They also provide information and analyses that
can be incorporated by reference in future NEPA reviews. Programmatic
NEPA documents may help an agency look at a large or multi-faceted
action without becoming immersed in all the details of future site or
project-specific proposals. Using programmatic and subsequent tiered
NEPA reviews effectively will allow for a focused review at the proper
level.
A programmatic NEPA review may be appropriate when the action being
considered falls into one of the four major categories of actions to
which NEPA can apply:
Adopting Official Policy. Decision to adopt in a formal
document an official policy that would result in or substantially alter
agency programs. The programmatic analysis for such a decision should
include a road map for future agency actions with defined objectives,
priorities, rules, or mechanisms to implement objectives. Programmatic
examples include:
[cir] Rulemaking at National- or regional-level;
[cir] Adoption of an agency-wide policy; or
[cir] Redesign of an existing program.
Adopting Formal Plans. Decision to adopt formal plans,
such as documents that guide or prescribe alternative uses of Federal
resources, upon which future agency actions will be based. For example,
setting priorities, options, and measures for future resource
allocation according to resource suitability and availability. Specific
programmatic examples include:
[cir] Strategic planning linked to agency resource allocation; or
[cir] Adoption of an agency plan for a group of related projects.
Adopting Agency Programs. Decision to proceed with a group
of concerted actions to implement a specific policy or plan; e.g., an
organized agenda with defined objectives to be achieved during
implementation of specified activities. Programmatic examples include:
[cir] A new agency mission or initiative; or
[cir] Proposals to substantially redesign existing programs.
Approving Multiple Actions. Decision to proceed with
multiple projects that are temporally or spatially
[[Page 50582]]
connected and that will have a series of associated concurrent or
subsequent decisions. Programmatic examples include:
[cir] Several similar actions or projects in a region or nationwide
(e.g., a large scale corridor project); or
[cir] A suite of ongoing, proposed or reasonably foreseeable
actions that share a common geography or timing, such as multiple
activities within a defined boundary (i.e., Federal land or facility).
Agencies should exercise their judgment and discretion when
determining whether to prepare a PEA or PEIS.\17\ CEQ recommends
agencies give particular consideration to preparing a PEA or PEIS when:
(1) Initiating or revising a national or regional rulemaking, policy,
or program; (2) adopting a plan for managing a range of resources; or
(3) making decisions on common elements or aspects of a series or suite
of closely related projects.
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\17\ National Wildlife Federation v. Appalachian Regional
Commission, 677 F.2d 883, 888 (D.C. Cir. 1981).
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A programmatic NEPA review may not be a cost effective effort for
an agency if the effort required to perform the review is substantially
greater than the time and effort saved in analyzing subsequent
proposals or if the lifespan of the programmatic NEPA document is
limited. Agencies usually benefit by asking two questions when
determining whether to prepare a programmatic NEPA review: (1) Could
the PEA or PEIS be sufficiently forward looking to contribute to the
agency's basic planning of an overall program?; and (2) does the PEA or
PEIS provide the agency the opportunity to avoid `segmenting' the
overall program from subsequent individual actions and thereby avoid
unreasonably constricting the scope of environmental regulation? \18\
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\18\ Piedmont Environmental Council v. F.E.R.C., 558 F.3d 304,
316 (4th Cir. 2009) (quoting Nat'l Wildlife Fed'n v. Appalachian
Reg'l Comm'n, 677 F.2d 883, 888-89 (D.C. Cir. 1981)) (agency can do
all individual EISs but not if that is an attempt to segment the
program and thereby limit regulation; if so, a programmatic should
have been done).
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IV. Practical Considerations for Programmatic Reviews and Documents
This section provides practical guidance to help agencies implement
a successful programmatic approach. The following points will be
addressed:
Answering the fundamental question of what decision(s)
does the agency need to make;
Answering the question of what actions would the agency
subsequently want to take based on the programmatic NEPA review;
Determining the purpose and need of the programmatic
proposal to be analyzed and decided on and its relationship to
subsequent tiered level proposals and decisions;
Defining a practical scope for the programmatic review
that is appropriate to the particular type of broad action being
analyzed;
Gathering and analyzing data for broadly scoped actions
that potentially affect large geographic areas;
Coordinating among the multiple overlapping jurisdictions
and agencies that may have a role in assessing or determining whether
and how a subsequent action may proceed;
Communicating the scope, content, and purpose of a
programmatic NEPA analysis in a way the parties involved in the process
and the public can understand;
Communicating the opportunities for public engagement in
the development of the tiered NEPA reviews; and
Maintaining the relevancy of programmatic NEPA documents
for subsequent tiered analyses.
A. Determining the Utility and Scope of the Programmatic NEPA Review
Agencies should carefully consider, as early as practicable, the
benefits of making the initial broad decisions and the amount of effort
required to perform the programmatic review to ensure that using the
programmatic approach facilitates decision-making and merits the
investment of time and effort. To determine the utility of the PEA or
PEIS, and the scope of analysis, an agency may find it helpful to
consider:
What Federal decisions need to be made now and in the
future regarding the broad Federal action being proposed?
What are the meaningful decision points \19\ from proposal
through implementation, and where are the most effective points in that
continuum to address the potential for effects?
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\19\ 40 CFR 1502.4(b) (``[a]gencies shall prepare statements on
broad actions so that they are relevant to policy and are timed to
coincide with meaningful points in agency planning and
decisionmaking'').
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What are the appropriate geographic limits and time frames
for this programmatic review?
Is it necessary to analyze the particular effects of a
proposed action at a broader scale to facilitate analysis and/or
decision-making at a more refined (i.e., tiered) level, and is a
programmatic NEPA review the best way to do this? For example, a
programmatic NEPA review may serve as an efficient mechanism to
describe Federal agency efforts to adopt sustainable practices for
energy efficiency, reduce or avoid greenhouse gas emissions, reduce
petroleum product use, and increase the use of renewable energy
including bioenergy, as well as other sustainability practices. The
definition of ``proposal'' for the purposes of NEPA review should be
considered when answering this question.\20\
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\20\ 40 CFR 1508.23 The regulation states that a ``proposal''
exists at that stage in the development of an action when an agency
subject to the Act has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated. It goes on to explain
that a proposal may exist in fact as well as by agency declaration
that one exists.
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How long will the programmatic review continue to provide
a relevant framework for tiering subsequent actions and what factors
may result in the need to supplement or refresh the review?
1. Purpose and Need
The purpose and need statement is key to developing the NEPA
review, as it establishes the scope of the analyses, range of
reasonable alternatives, and frames the decision to be made. The
purpose and need for a programmatic review will differ from the purpose
and need for a project- or site-specific EA or EIS. The purpose and
need for a PEA or a PEIS needs to be broad enough so as to avoid
eliminating reasonable alternatives for a tiered EA or EIS and focused
enough for the agency to conduct a rational analysis of the impacts and
allow for the public to provide meaningful comment on the programmatic
action. The purpose and need sets the tone for the scoping process and
the course for conducting the NEPA review.
2. Scope of Analysis
The scope consists of the range of actions, the alternatives, and
the associated impacts to be considered in a NEPA review.\21\ A
programmatic NEPA review, like project- or site-specific NEPA reviews,
must address the potentially significant environmental impacts of a
proposed Federal action. Consequently, the nature of the pending
decision drives the scope of the environmental analyses and
documentation. The planning process for the proposed action and the
development of a programmatic NEPA review should start as early as
practicable. By starting the planning process early, there should be
sufficient time for establishing the reasonable scope of actions,
alternatives, and impacts in the programmatic review,
[[Page 50583]]
and identifying the decisions the programmatic review will support so
that the level of analysis is clear from the start.
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\21\ 40 CFR 1508.25.
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3. The Proposed Action
In addition to unconnected single actions, there are three types of
actions set out in 40 CFR 1508.25(a) that may be analyzed in NEPA
reviews, including those that are programmatic: connected actions,
cumulative actions, and similar actions.
Connected actions are those that enable other actions that require
a Federal action, or where the enabled action cannot or will not
proceed unless the underlying action is taken; or are interdependent
parts of a larger action and depend on the larger action for
justification.\22\ Projects that have independent utility are not
connected actions.\23\
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\22\ 40 CFR 1508.25(a)(1).
\23\ 40 CFR 1508.25(a)(1)(iii).
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Example: An agency could analyze a proposed pesticide
aerial application program for a large metropolitan area in the same
NEPA document with related actions such as the following: equipment
purchase and location; pesticide purchase, storage methods and
location; and loading locations that will be needed. These are examples
of connected actions that are interdependent parts of the larger
proposed pesticide aerial application program.
Cumulative actions are those with impacts which, when viewed with
other proposed actions, have the potential for cumulatively significant
impacts and should therefore be discussed collectively in the same NEPA
review.\24\
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\24\ 40 CFR 1508.25(a)(2).
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Example: A proposed pesticide use program can be analyzed
in conjunction with a proposed pest eradication program as cumulative
actions because they have the potential to affect the same resources.
Note that cumulative effects would have to be considered when
conducting the NEPA reviews for each of the proposals, whether in
separate or combined NEPA reviews.
Similar actions are those which, when viewed with other reasonably
foreseeable or proposed agency actions, have similarities such as
timing, impacts, alternatives, or methods of implementation.\25\ A
programmatic NEPA review provides a platform for evaluating their
environmental consequences together.
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\25\ 40 CFR 1508.25(a)(3) and 1502.4(c).
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Example: Several energy development programs proposed in a
region of the country are similar actions if they have similar proposed
methods of implementation and best practice mitigation measures that
can be analyzed in the same document.
Broad Federal actions may be implemented over large geographic
areas and/or a long time frame. Programmatic NEPA documents must
include connected and cumulative actions, and the responsible official
should consider whether it is helpful to include a series or suite of
similar actions.\26\
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\26\ 40 CFR 1508.25(a).
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Agencies may prepare a single NEPA document to support both
programmatic and project-specific proposals. Such an approach may be
appropriate when an agency plans to make a broad program decision, as
well as decisions to implement one or more specific projects under the
program. For example, the programmatic approach may address both the
broad impacts of the proposed broad Federal action and provide
sufficiently detailed environmental analyses for specific decisions,
such as determining the locations and designs of one or more proposals
to implement the broad Federal action. The challenge for agencies is to
clearly communicate why some environmental aspects are analyzed in
greater detail--such as the project- or site-specific effects--than
others--such as the programmatic effects. It is essential to clearly
state the decisions the agency proposes to make based directly on the
PEA or PEIS and distinguish the analysis of impacts and alternatives of
the broad programmatic proposals from the project- or site-specific
proposals.
4. The Alternatives
Alternatives in a programmatic NEPA review are expected to reflect
the level of the broad Federal action being proposed and would include
the standard NEPA requirements for alternatives.\27\ In situations
where there is an existing program, plan or policy, CEQ expects that
the no-action alternative would typically be the continuation of the
present course of action until a new program, plan or policy is
developed.\28\
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\27\ 40 CFR 1508.25(b) and 1508.9(3)(b).
\28\ 46 FR 18026 (addressing in question and answer three what
is included in a ``no action'' alternative).
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When preparing the programmatic NEPA review for a policy, plan,
program, or project, alternatives can be considered at the programmatic
level to support focusing future decisions and eliminating certain
alternatives from detailed study in subsequent NEPA reviews. By clearly
articulating the nature of subsequent tiered decisions, agencies can
craft the alternatives for a programmatic review to focus the scope and
development of alternatives for the subsequent tiered NEPA documents.
By articulating the reasoned choice between alternatives, with a
discussion of why considered alternatives were not chosen, the range of
alternatives in tiered NEPA reviews can be appropriately narrowed.
Including a brief written discussion of the reasons alternatives were
eliminated \29\ should provide the justification for narrowing the
range of reasonable alternatives to be considered in those tiered NEPA
documents.
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\29\ 40 CFR 1502.14(a).
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5. The Impacts
All NEPA reviews are concerned with three types of reasonably
foreseeable impacts: direct, indirect, and cumulative.\30\ The contrast
between a programmatic and a project- or site-specific NEPA review is
most strongly reflected in how these environmental impacts are
analyzed. Because impacts in a programmatic NEPA review typically
concern environmental effects over a large geographic and/or time
horizon, the depth and detail in programmatic analyses will reflect the
major broad and general impacts that might result from making broad
programmatic decisions. Agencies should be clear about the context of
the decision to be made and how it relates to the intensity of any
potential impacts.
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\30\ 40 CFR 1508.7 and 1508.8.
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As noted previously, agencies may propose decisions regarding
standard mitigation protocols and/or operating procedures in a
programmatic NEPA review and thereby provide a framework and scope for
the subsequent tiered analysis of environmental impacts. For example,
proposals for long range energy or transportation infrastructure
programs are potentially good candidates for PEAs and PEISs that
include an assessment of how the programs will contribute to or reduce
water quantity and quality. Discussions of water quantity and quality
could then be incorporated by reference in tiered NEPA reviews. By
identifying potential program impacts early, particularly cumulative
and indirect impacts, programmatic NEPA reviews provide opportunities
to modify program components and avoid or mitigate adverse impacts when
developing subsequent proposals.
[[Page 50584]]
B. Collaboration, Public Engagement, and Coordination With Other
Environmental Reviews
1. Importance of Collaboration and Cooperation
The types of actions that agencies analyze in programmatic reviews
may feature some jurisdictional complexity. Impacts on state, tribal
and private lands, and potentially overlapping authorities between
agencies and governments with different missions and authorities should
be considered in programmatic reviews that address resources or actions
across jurisdictional boundaries. Collaboration and cooperation among
Federal agencies, tribes, and state and local governments is especially
critical for successful completion of meaningful programmatic NEPA
reviews. Scoping early in the process provides agency decision-makers
with access to other agencies' and governments' expertise and can help
agencies identify broad scale issues, develop alternatives for
analysis, identify the appropriate temporal and spatial parameters, and
determine the appropriate depth of analysis or level of detail for the
NEPA review.
2. Public Involvement
Engaging the public is particularly important when developing
programmatic NEPA reviews in order to ensure agency objectives are
understood and to clarify how a programmatic review relates to
subsequent tiered reviews. Effective public engagement also will help
manage expectations with regard to the purpose and need, the scope of
the programmatic NEPA review, and the purpose and need and scope of
subsequent site- and project-specific NEPA reviews. Outreach to
potentially interested stakeholders should begin as early as possible--
even in advance of formal scoping periods--to afford the public a
meaningful opportunity to comment on and shape the NEPA review.
When the public has a chance to see the big picture early it can
provide fresh perspectives and new ideas before determinations are made
that will shape the programmatic review as well as subsequent tiered
proposals. Early outreach also provides an opportunity to develop trust
and good working relationships that may extend throughout the
programmatic and subsequent NEPA reviews and continue during the
implementation of the proposed action.\31\ An agency can encourage
early public participation by clearly explaining to the public not only
what the proposed programmatic evaluation is meant to accomplish, but
also how it relates to future actions, and why the public should get
involved at the programmatic stage and not wait for any tiered reviews.
Clarity of approach is essential to avoid the impression that a
programmatic NEPA review creates a situation whereby the public is too
early to raise issues in the broader programmatic analysis and then too
late to raise them in any subsequent tiered analyses.
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\31\ 40 CFR 1501.7; see also Council on Environmental Quality,
Collaboration in NEPA--A Handbook for NEPA Practitioners (October
2007), available at http://ceq.hss.doe.gov/nepa/nepapubs/Collaboration_in_NEPA_Oct2007.pdf.
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Stakeholders for a programmatic review may span multiple states and
large areas. Consequently, public engagement should be well thought
through to include all the potentially interested Federal and state
agencies, tribes, local governments, private organizations, and
individual citizens.\32\
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\32\ For example, a good way to reach out to such a large and
diverse public is through non-governmental organizations and
citizen's groups. These organizations frequently know what their
constituents care about and they may have effective means for
communicating with those constituents. Agencies are also encouraged
to use conference calls, web meetings and teleconferences to
facilitate easy participation by the interested public.
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3. Coordination With Other Environmental Reviews
The purpose and need statement and the proposed action for the
programmatic NEPA review are critical for determining the compliance
requirements under other applicable laws and regulations, such as the
Endangered Species Act, National Historic Preservation Act, and Clean
Water Act. They are also critical for determining when these other
reviews must be completed and for developing a strategy to address all
environmental review and consultation requirements in a coordinated
manner. Coordinating compliance with other environmental reviews
supports a broad discussion, facilitates a comprehensive project
management schedule, provides opportunities to meet data, public
engagement, and documentation requirements more efficiently, and
generally promotes greater transparency in Federal decision-making.
Programmatic NEPA analysis and subsequent tiered NEPA analysis
support a phased decision-making process that allows certain statutory
and regulatory compliance to be achieved at the programmatic level. The
nature of the decision at each phase and the extent to which it may
constrain the subsequent consideration of alternatives will help
determine an agency's overall environmental compliance requirements.
NEPA requires a full evaluation of all specific impacts when the agency
proposes to make an irreversible and irretrievable commitment of the
availability of resources to a project. This usually occurs at the
site-specific level.\33\
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\33\ N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886 (9th Cir.
1992).
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Provided the PEA or PEIS has sufficient specific data and
information, it may satisfy other relevant legal requirements for site-
specific future actions, even when there is no irreversible or
irretrievable commitment of resources at the programmatic level. The
determination of whether a particular decision in a phased or
incremental decision-making process represents this level of commitment
begins with a well formulated description of the proposed action.\34\
Agencies should be aware that preparing a programmatic NEPA review is
not a substitute for compliance with other environmental laws.
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\34\ Friends of Yosemite Valley v. Norton, 348 F. 3d, 789, 801
(9th Cir. 2003).
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For example, approval of land use plans that establish future
management goals and objectives for resource management, and the
measures to achieve those goals and objectives, do not necessarily
require completion of the Section 106 process under the National
Historic Preservation Act. In some cases, an agreement with
stakeholders, such as a programmatic agreement pursuant to sec. 106 of
the National Historic Preservation Act, demonstrates an agency's
compliance requirements for phased decisions being analyzed through a
programmatic NEPA review. For instance, where a Federal agency's broad
decision will narrow the opportunities for adverse effects in future
specific proposals, then the agency may initiate the sec. 106 process
as part of the programmatic review. This will allow the agency to
complete that process by establishing steps for meeting its
responsibility as it implements the broad decision and prior to
subsequent project- and site-specific proposals.
Agencies should clearly and concisely articulate their intentions
to defer particular environmental review and consultation requirements
for consideration until a subsequent project- or site-specific proposal
is developed. When deferring these requirements, agencies may still
need to analyze and address related statutory requirements to some
extent in the programmatic document. For example, if the subsequent
actions tiered to the
[[Page 50585]]
programmatic document will require authorization under sec. 404 of the
Clean Water Act prior to construction, agencies should include, after
consultation with the U.S. Army Corps of Engineers, a discussion of the
range of alternatives that are necessary to demonstrate compliance with
the sec. 404(b)(1) Guidelines, and whether there are any practicable
alternatives that have less adverse impact on the aquatic ecosystem--
and do not have other significant environmental effects--will be made
at the project-specific or site-specific level.
C. Preparing the Documents
1. Programmatic Environmental Assessment or Programmatic Environmental
Impact Statement?
Programmatic approaches are usually associated with EISs and tiered
documents more typically with proposal-specific EAs. Tiering an EA from
a PEIS is appropriate when there are no new significant affects or
considerations and the programmatic NEPA review addresses those
measures that tiered proposals can rely on to address and reduce the
significance of the site- or project-specific impacts.
An agency may prepare a PEA to determine whether an EIS is required
or when considering a proposal that does not have significant impacts
at the programmatic level. Following a PEA that results in a finding of
no significant impact (FONSI), an agency may tier to an EA that results
in a finding of no significant impact,\35\ or may tier to an EIS when a
subsequent site- or project- specific proposal has the potential for a
significant impact on the environment.
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\35\ Northern Plains Resource Council v. Lujan, 874 F.2d 661,
665-66 (9th Cir. 1989).
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Whether the agency prepares a PEA or a PEIS, that programmatic
review should explain how the agency intends to use it to complete
future proposal-specific NEPA reviews. Reasonably available information
that should be provided both during scoping and in the PEA or PEIS
includes the expected timing of the tiered review(s) as well as the
issues, and depth of analysis, it is expected to consider. At the
project- or site-specific level, it is necessary to consider the
potential impacts that have not been analyzed and considered in the
previous programmatic review to which it tiers.
2. Level of Detail in Programmatic NEPA Documents
A PEA or PEIS addresses the broad environmental consequences
relevant at the programmatic level. A subsequent tiered EA or EIS will
address more particularized considerations, but can benefit from the
programmatic by summarizing and incorporating by reference parts of
it.\36\ For example, with the Forest Service's programmatic Gypsy Moth
Supplemental EIS, the PEIS analyzed the human health and ecological
risk assessments for each pesticide approved for use in the Gypsy Moth
Eradication Program thereby eliminating the need for such analysis when
individual spraying projects are proposed. The PEIS analyzed and
disclosed these risks, and deferred to site or project level analyses
the specific application of these risk data to how the insecticides
would be used in a given project (e.g., dose rates, number of
applications, presence of ``sensitive populations'') and other specific
issues and concerns raised during scoping.
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\36\ Nevada v. Dep't of Energy, 372 U.S. App. DC 432 (D.C. Cir.
2006).
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The PEA or PEIS must provide sufficient detail to foster informed
decision-making that reflects broad environmental consequences from a
wide-ranging federal program.\37\ Site- or project-specific impacts
need not be fully evaluated at the programmatic level when the decision
to act on a site development or its equivalent is yet to be made.\38\
Alternatives need only be specific enough to make a reasoned choice
between programmatic directions. The alternatives need not consider
every specific aspect of a proposal. For example, a programmatic
analysis of a plan would not require consideration of detailed
alternatives with respect to each aspect of the plan--otherwise a
programmatic analysis would be impossible to prepare and would become a
compilation of a vast series of site specific analyses.\39\
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\37\ Found. On Econ. Trends. v. Heckler, 756 F.2d 143, 159 (D.C.
Cir. 1985).
\38\ Citizens for Better Forestry v. U.S. Dep't of Agriculture,
481 F. Supp. 2d 1059, 1086, (D. Cal. 2007).
\39\ Greenpeace v. National Marine Fisheries Service, 55 F.
Supp. 2d 1248, 1276 (D. Wash. 1999).
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The following considerations may be helpful to determine the scale
and scope of impacts to be addressed in a programmatic NEPA review:
First, what are the appropriate scales of the affected
environment to be analyzed (e.g., watershed, basin, etc.)?
Second, what environmental impacts are of concern at this
scale?
Third, what information can be garnered about
environmental impact criteria (thresholds) to assist in describing when
those impacts are best addressed in detail?
Determining the level of detail appropriate to a programmatic
analysis requires weighing several factors, including the extent of the
interrelationship among proposed actions, the scale and scope of any
subsequent decisions, as well as practical considerations of
feasibility. Resolving these issues will require the expertise of the
agencies responsible for the proposed action informed by the agencies
responsible for the potentially impacted resources.\40\
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\40\ Texas Committee on Natural Resources v. Bergland, 573 F. 2d
201 (5th Cir. 1978).
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3. Depth of Impact Analysis in Programmatic NEPA Documents
The agency is obligated to conduct a meaningful impact analysis in
accordance with NEPA, and that analysis should be commensurate with the
nature and extent of potential impacts of the decision being made. A
programmatic NEPA review should contain sufficient discussion of the
relevant issues and opposing viewpoints to enable the decision-maker to
take a ``hard look'' at the environmental effects and make a reasoned
choice among alternatives.\41\ There should be enough detail to enable
those who did not have a part in its compilation to understand and
meaningfully consider the factors involved.\42\
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\41\ Natural Resources Defense Council v. Morton, 458 F.2d 827,
838 (D.C. Cir. 1972).
\42\ Baltimore Gas and Electric Co v. NRDC, 462 U.S. 87 (1983).
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A broad (e.g., regional) description may suffice for characterizing
the affected environment in most programmatic NEPA reviews, so long as
potentially impacted resources are meaningfully identified and
evaluated. Impacts can often be discussed in a broad geographic and
temporal context with particular emphasis on cumulative impacts. Those
impacts can often be shown in a meaningful way by displaying a range of
potential effects. The scope and range of impacts may also be more
qualitative in nature than those found in project- or site-specific
NEPA reviews.
It may be more difficult for an agency to analyze the environmental
impacts in depth when there is no clear indication--no site- or
project-specific proposal pending--for the level of activity that may
follow a programmatic decision.\43\ A programmatic NEPA review should
carefully consider the scope of both the programmatic and the
subsequent tiered NEPA review. CEQ's 1981 scoping guidance addressed
this issue and the need to be clear about the type of programmatic NEPA
review.
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\43\ 40 CFR 1508.23.
[I]f a proposed program is under review, it is possible that
site specific actions are not yet proposed. In such a case, these
actions
[[Page 50586]]
are not addressed in the EIS on the program, but are reserved for a
later tier of analysis.\44\
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\44\ Council on Environmental Quality, Memorandum for General
Counsels, NEPA Liaisons, and Participants in Scoping (April 30,
1981), available at http://ceq.hss.doe.gov/nepa/regs/scope/scoping.htm.
Thus, the deferred analysis should be identified and the intended
use of tiering made clear at the outset of scoping, and articulated in
the programmatic review. Informing participants and the public of the
expected timing of the tiered review(s), as well as the issues and
depth of analysis, allows them to concentrate on the issues at hand,
rather than on those that will be addressed later. Courts have affirmed
NEPA's requirement that Federal agencies document the environmental
impacts of proposed broad actions, such as programs, recognizing the
difficulty in predicting the level of activity that will occur and that
it may not be possible to analyze thoroughly the environmental effects
of, and the resource commitments involved in, such a broad proposed
activity.\45\
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\45\ Kleppe v. Sierra Club, 427 U.S. 390 (1976).
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For example, in the PEIS for the Container Terminal Development
Plan prepared by the Port of Seattle Marine Planning & Development
Department, the port determined that it was impossible to know the
precise demand for container service in the future, and therefore it
was impossible to predict the precise location, type and timing of
specific facilities and their environmental impacts. Recognizing the
uncertainties involved, the PEIS evaluated potential environmental
impacts and opportunities comprehensively by focusing on a bounded
range of potential activities and their impacts. The port's Container
Plan projected a low and high range for container service demand and a
range of new or improved facilities. The EIS evaluated strategies for
meeting low and high range demand and the preferred alternative based
on the plan, providing a flexible market-driven approach in recognition
of the dynamic nature of the shipping industry and supply of regional
container facilities.\46\
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\46\ Final Environmental Impact Statement, Container Terminal
Development Plan, Port of Seattle Marine Planning & Development
Department 1-17 (October 1991) (on file with the Council on
Environmental Quality).
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D. Mitigation and Monitoring
Programmatic NEPA reviews provide an opportunity for agencies to
incorporate comprehensive mitigation planning and monitoring strategies
into the Federal policymaking process at a broad or strategic, rather
than specific, or site-by-site, level. These analyses can promote
sustainability and allow Federal agencies to advance the nation's
environmental policy as articulated in sec. 101 of NEPA.\47\
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\47\ 42 U.S.C. 4331. See also E.O. 13423, 72 FR 3919 (2007),
available at ceq.eh.doe.gov/nepa/regs/Executive_Order_13423.htm.
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By identifying potential adverse impacts early during the broad
programmatic planning, programmatic NEPA reviews provide a unique
opportunity to modify aspects of the proposal and subsequent tiered
proposals to avoid or otherwise mitigate those impacts. A thoughtful
and broad-based approach to planning for future development can include
best management practices, standard operating procedures and
comprehensive mitigation measures that address impacts on a broad
programmatic scale (e.g., program-, region-, or nation-wide). These can
expedite the preparation of subsequent project- or site-specific
proposals by establishing siting, design, operational, or other
relevant implementation criteria, requirements, and protocols. The
subsequent tiered NEPA review would then include those measures to
address potentially significant impacts and focus on the impacts and
mitigation alternatives available at the project- or site-specific
level that were not considered in the PEA or PEIS.
For example, a Forest Service and Bureau of Land Management PEIS
for coal bed methane development on Federal lands in San Juan National
Forest established siting and engineering techniques and best
management practices to reduce the effects of coal bed methane
development on surface water quality, quantity, and use; established a
suite of mitigation measures for when pipelines, roads, or power lines
crossed a stream, wetland, or riparian area; established the
development of site-specific mitigation plans; and required monitoring
plans for individual wells that would disturb wetlands or riparian
areas.\48\ These types of programmatic decisions provide valuable
information for project proponents (e.g., applicants for Federal
licenses or rights-of-way) as they design proposals and implementation
activities and give the public insight into the kinds of protections
that would be afforded in designing and permitting such facilities.
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\48\ San Juan Citizens Alliance v. Stiles, 654 F.3d 1038 (10th
Cir. 2011).
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Programmatic NEPA reviews also afford agencies the opportunity to
develop monitoring programs to address impacts on a broad scale. This
provides agencies the opportunity to ensure that mitigation commitments
on the programmatic level are actually being implemented. Further, it
allows agencies to determine whether the mitigation measures achieved
the environmental outcomes they were designed to accomplish.\49\
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\49\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: 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.
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Finally, monitoring is critical when agencies establish adaptive
management strategies in a programmatic NEPA document to increase their
flexibility in developing and analyzing subsequent resource management
proposals. Identifying triggers for changing the course of
implementation and the associated effects and analyzing those impacts
at the programmatic level, can allow the agency to change the course of
implementation without the need for developing supplemental NEPA
reviews and the associated documentation. Ranges of results inform the
public and the decision-maker about what parameters are acceptable for
continued management under the proposed adaptive management regime and
monitoring provides assurance that the environmental impacts have been
adequately considered in the programmatic review.
E. Handling New Proposals While Preparing a Programmatic NEPA Review
Agencies are sometimes reluctant to conduct programmatic NEPA
reviews because of the risk of delaying ongoing and newly proposed
actions. The CEQ Regulations enable interim actions to proceed provided
certain criteria are met.\50\ Typically, proposed actions of relatively
limited scope or scale that would have local utility may be taken as an
interim action before completing the programmatic analysis.
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\50\ 40 CFR 1506.1.
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The CEQ Regulations address interim action criteria for site- or
project-specific EAs or EISs when required PEAs and PEISs are not yet
completed.\51\ Although the CEQ Regulations address criteria for
interim actions specifically in the context of PEISs, in those cases
where part of a proposed action needs to proceed while a PEA is being
prepared, agencies should use the criteria in the CEQ Regulations. The
CEQ Regulations recognize and provide for situations where the
programmatic review is not available when the
[[Page 50587]]
program is at an investment stage or there is a commitment to
implementation that will limit future alternatives.\52\
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\51\ 40 CFR 1506.1(a) and (c).
\52\ 40 CFR 1502.4(c)(3).
The CEQ Regulations state, in relevant part that while work on a
required program environmental impact statement is in progress and
the action is not covered by an existing program statement, agencies
shall not undertake in the interim any major Federal action covered
by the program which may significantly affect the quality of the
human environment unless such action: Is justified independently of
the program; is itself accompanied by an adequate environmental
impact statement; and will not prejudice the ultimate decision on
the program. Finally, the regulations state that interim action
prejudices the ultimate decision on the program when it tends to
determine subsequent development or limit alternatives.\53\
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\53\ 40 CFR 1506.1(c).
Under the first criterion regarding independent justification,
agencies may take an interim action that the agency determines could be
undertaken irrespective of whether or how the program goes forward,
assuming the other two criteria are met. For example, in cases where an
agency is obligated by law to carry out a proposed interim action, the
agency should be able to demonstrate that the action has independent
utility.
The second criterion makes it clear that an EIS must be prepared
for a proposed interim action that has the potential for significant
environmental impacts. Although completion of a PEIS first may be more
efficient than preparing an adequate EIS for a proposed interim action,
the agency could complete an adequate EIS for the interim action. In
cases that don't involve significant impacts, an EA would be sufficient
to provide adequate NEPA support to meet this second criterion.
Under the third criterion, agencies may take an interim action when
they determine that the proposed interim action would not jeopardize
the objective consideration of reasonable alternatives. Agencies should
take care to distinguish interim actions from ongoing actions. An
agency does not need to suspend all operations because it has elected
to prepare a programmatic NEPA document. For example, in the case of an
area-wide or site-wide PEIS considering a new proposed operations plan,
ongoing operations within the area or site may continue and such
ongoing operations would be considered under the no action alternative
in the PEIS.
F. The Decision Document
The decision is documented in a Record of Decision (ROD) following
preparation of a PEIS or a decision may be based on a FONSI following
preparation of a PEA. The decision document should clearly explain the
decision and indicate whether tiered analyses will follow. For example,
the agency should articulate its intentions with regard to future
decisions, describe how the agency will use the programmatic NEPA
document as a basis for tiering future NEPA reviews, and indicate when
any deferred issues will be addressed.
The programmatic decision document following a PEA or a PEIS should
provide the information required in a ROD. It should include a
description of the alternatives considered, the environmentally
preferable alternative, economic and technical considerations, agency
statutory missions, essential considerations of national policy, and
all practicable means to avoid or minimize environmental harm from the
alternative selected that were adopted or, if not, why not. A
monitoring and enforcement program should also be adopted and
summarized for any mitigation where that is applicable.\54\
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\54\ 40 CFR 1505.2(c).
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V. Subsequent Proposal-Specific NEPA Reviews
A. Deferred Issues
Certain issues may not be addressed in a PEA or PEIS, but rather
are discussed fully in subsequent tiered NEPA analysis. These deferred
issues can include issues that will be addressed in additional tribal
consultations or further National Historic Preservation Act Section 106
consultation, Endangered Species Act Section 7 consultation, or other
determinations and consultations. To provide clarity to the public and
the decision-maker, programmatic NEPA reviews should make clear when
the analysis of potential environmental impacts will be deferred. When
preparing a PEA, it is acceptable for an agency to limit its analysis
to those foreseeable effects resulting from the programmatic decision
at hand. The programmatic document should clearly explain that, while
there may be other effects, they do not affect the programmatic
decision and full review of these issues is being deferred. In this
case agencies should logically explain why there is no effect on the
programmatic decision, and also include sufficient information to
explain where and when deferred issues raised by the public and/or
regulatory agencies will be addressed.
The scoping process and subsequent public involvement provide an
opportunity to clarify the triggers for determining when subsequent
reviews and opportunities for review and comment will take place.\55\
The programmatic document should also, whenever practicable, explain
how and when the interested parties will be notified of any subsequent
reviews.
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\55\ See 40 CFR 1501.7 (scoping), sec. 1501.4 (public
involvement in EAs), and sec. 1506.6 (public involvement).
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B. Tiering NEPA Reviews
One of the main advantages of a programmatic NEPA review is the
ability to tier subsequent reviews, such as site- or proposal-specific
reviews.\56\ Tiering has the advantage of not repeating information
that has already been considered at the programmatic level so as to
focus and expedite the preparation of the tiered NEPA review(s). When a
PEA or PEIS has been prepared and an action is one anticipated in,
consistent with, and sufficiently explored within the programmatic NEPA
review, the agency need only summarize the issues discussed in the
broader statement and incorporate discussion from the broader statement
by reference and concentrate on the issues specific to the subsequent
tiered proposal.\57\
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\56\ 40 CFR 1502.20.
\57\ 40 CFR 1502.20.
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There are times when an analysis at one level is sufficient. For
example, when the programmatic review has taken the required ``hard
look'' at the potential environmental impacts, an agency can rely upon
the analysis provided in the PEA or PEIS.\58\ On the other hand, an
agency may determine that detailed analysis should be deferred to the
tiered analysis. The programmatic review must be clear when issues are
being deferred, and any subsequent tiered documents will need to review
briefly what level of analysis has been considered and whether it is
still contemporary.
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\58\ Natural Resources Defense Council v. Morton, 458 F.2d 827,
838 (D.C. Cir. 1972).
---------------------------------------------------------------------------
While CEQ Regulations specifically authorize an agency to tier
other NEPA reviews to an EIS, there is no barrier to tiering an EIS to
an EA prepared in accordance with NEPA, the CEQ Regulations, and agency
NEPA implementing procedures, so long as a sufficient explanation for
such an approach is proffered. A programmatic NEPA review may defer
some decisions, and make use of tiering and incorporation by reference,
and still be
[[Page 50588]]
considered a ``hard look.'' Cases that address ``improper tiering''
involve situations where an agency attempts to tier to a non-NEPA
document.\59\
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\59\ Kern v. BLM, 284 F.3d 1062 (9th Cir. 2002), the Court found
that, ``tiering to a document that has not itself been subject to
NEPA review is not permitted, for it circumvents the purpose of
NEPA.'' In Northcoast Environmental Center v. Glickman, the Court
found that, ``[a]lthough CEQ procedures allow agencies to
incorporate by reference certain materials to cut down on the bulk
of an EIS, they cannot `tier' their site-specific EISs to the
broader POC program where the program itself has not been subject to
NEPA procedures.'' Courts have also held that agencies can't
properly tier when agencies tier to an outdated PEIS (League of
Wilderness Defenders v. Marquis-Brong, 259 F. Supp. 2d 115, 1122-23
(D. Or. 2003), or an inadequate or flawed PEIS (Muckleshoot Indian
Tribe v. U.S. Forest Serv., 177 F.3d 800, 811 (9th Cir. 1999)).
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Confusion over what level of NEPA analysis is required for tiered
proposals may occur when a programmatic EIS is complete and the site-
specific project will have a significant impact as indicated in the
programmatic document. When this occurs, the appropriate question is
not if there is a significant impact from the proposed action, but if
there is a new significant impact that was not already considered and
addressed in the programmatic review. If there are no new significant
impacts, an EA may be appropriate instead of an EIS so long as the
aspects of the proposed action that involve significant effects have
not changed since the PEIS, and the agency presents its reasons for
determining that the effects and potential mitigation measures were
adequately considered in the PEIS. Consequently, as an agency
determines the appropriate scope for a PEIS, it should consider the
potential for significant site- or project-specific impacts and the
cost/benefit of addressing them programmatically.
C. New Information and Supplementing Documents
The CEQ Regulations provide a procedural framework for keeping
environmental analyses current. They require agencies to prepare
supplements upon determining there is significant new information of
relevance to the proposed action or its impacts.\60\ The possibility of
new information arising after an EA or EIS is completed exists
regardless of whether that NEPA review is a programmatic review.
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\60\ See 40 CFR 1505.3 (monitoring), 1502.9 (supplementation).
See also Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, (D.
Wash. 1992) (``[a] federal agency has a continuing duty to gather
and evaluate new information relevant to the environmental impact of
its actions, even after release of an EIS'').
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When new information reaches an agency, it should be initially
screened with respect to the following considerations:
Does the new information pertain to a programmatic NEPA
review that was prepared for a now-completed decision-making process?
Are there any more decisions to be made by the agency that
would use the original NEPA review to meet all or a portion of the
agency's NEPA compliance responsibilities for any upcoming decision?
If there are no further decisions to be made, revising the original
programmatic NEPA review serves no purpose and is not required. If the
new information is relevant to a future decision for which the agency
intends to rely upon the original programmatic NEPA review to meet all
or a portion of its NEPA compliance responsibilities, then the new
information must be reviewed in order to determine if it has any
potential effect on the content of the original programmatic review,
either in terms of: (a) The accuracy of the previously analyzed impacts
(direct, indirect or cumulative); or (b) the feasibility of the
alternatives presented or their comparative analysis. If
supplementation is not required, agencies should consider documenting
that determination which, for example, could be done, through a
memorandum to the record that could be included in the administrative
record for the programmatic NEPA review.
The agency is responsible for making a reasoned determination
whether new information raises significant new circumstances or
information regarding environmental impacts or involves substantial
changes in the actions decided upon in the programmatic analysis.\61\
When a PEA was used, the determination must consider whether the PEA
and FONSI are sufficient or whether an EIS is now necessary. If there
is a need to supplement, a supplemental PEA can address the new
information and result in a FONSI when the agency's consideration of
the context and intensity of the effects of the programmatic proposal
warrant a FONSI.\62\
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\61\ 40 CFR 1502.9.
\62\ 40 CFR 1508.27.
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When an agency determines there is a need to supplement a NEPA
review, programmatic NEPA reviews provide alternative ways to complete
that supplementation. The traditional approach would be to supplement
the base document, the original PEA or PEIS. Alternatively, if a new
tiered NEPA review can include consideration of the programmatic
issues, then the tiered review can also serve as the vehicle for
supplementing the PEA or PEIS. When the new information's effects are
limited to potential impacts or alternatives associated with the next
stage, or project- or site-specific decision, then the tiered analysis
can address the new information without having to supplement the PEA or
PEIS.
VI. The Lifespan of a Programmatic NEPA Document
Agencies must consider and make reasonable efforts to anticipate
the length of time the programmatic decision and its supporting NEPA
review will be maintained and used for subsequent tiered reviews.
Programmatic documents may become outdated depending on the specificity
and analyses included in them. Agencies should determine the factors
that may result in the need to supplement or refresh the analysis,\63\
establish criteria for evaluating the programmatic document for its use
as a basis for subsequent proposal-specific NEPA, and communicate this
to stakeholders. When a programmatic review is projected to have a long
life span, then the agency should pay close attention to the possible
effects of new information.
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\63\ 46 FR 18026 (refer to question 32 in CEQ's 40 Most Asked
Questions). As a rule of thumb, if the proposal has not yet been
implemented, or if the EIS concerns an ongoing program, EISs that
are more than 5 years old should be carefully reexamined to
determine if the criteria in sec. 1502.9 compel preparation of an
EIS supplement.
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VII. Conclusions
This guidance is intended to assist agencies in preparing PEISs and
PEAs that address broad, strategic, programmatic level analyses.
Agencies should consider using PEAs and PEISs whenever appropriate.
Programmatic NEPA reviews provide an opportunity for considering
environmental consequences at a broader level and enhance the
integration of environmental concerns and mitigations into an agency's
planning procedures. In addition, agencies that are able to clearly
explain how specific, outstanding, or future actions will be addressed
in subsequent tiered documents, and how the analyses will be vetted
publicly, will ensure that the public is informed and can improve the
quality of participation and analysis agencies receive from the public,
thereby enhancing decision-making. This guidance also is intended to
assist NEPA practitioners in realizing the benefits of programmatic
NEPA reviews. It should be used in conjunction with the regulations and
guidance previously issued by CEQ (see relevant excerpts in Appendix B)
and any applicable agency
[[Page 50589]]
NEPA procedures established in accordance with 40 CFR 1507.3.
Appendix A: Programmatic and Tiered Analyses
Programmatic and tiered analyses differ in their focus and scope.
The following table indicates the general differences between
programmatic and subsequent tiered analyses.64
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Subsequent (e.g.,
project- or site-
Programmatic level specific) tiered
level
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Nature of Action............ Strategic, Construction,
conceptual. operations, site-
specific actions.
Level of Decision........... Policy, program, Individual
planning, suite of project(s).
similar projects.
Alternatives................ Broad, general, Specific alternative
research, locations, design,
technologies, construction,
fiscal measures, operation, permits,
socioeconomic, land site-specific.
use allocations.
Scale of Impacts............ Macroscopic, for Project level,
example, at a mainly local.
national, regional,
or landscape level.
Scope of Impacts............ Broad in scale and Localized and
magnitude. specific.
Time Scale.................. Long- to medium-term Medium- to short-
(e.g., Regulatory). term (e.g.,
Permit).
Key Data Sources............ Existing national or Field work, sample
regional analysis,
statistical and statistical data,
trend data, policy local monitoring
and planning data.
instruments.
Impacts..................... Qualitative and Generally
maybe quantitative quantifiable
to the degree (though not
possible. always).
Decision.................... Broad, strategic Detailed, project-
program, policy, or or site-specific,
plan. action-oriented.
Mitigation.................. General, broad suite Specific, precise
of potential measures applicable
measures that could to a proposed
apply and action.
potentially the
commitments on when
they will apply.
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[FR Doc. 2014-20199 Filed 8-22-14; 8:45 am]
BILLING CODE 3225-F4-P