[Federal Register Volume 80, Number 11 (Friday, January 16, 2015)]
[Notices]
[Pages 2381-2392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00681]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 /
Notices
[[Page 2381]]
GULF COAST ECOSYSTEM RESTORATION COUNCIL
National Environmental Policy Act Implementing Procedures and
Categorical Exclusions
AGENCY: Gulf Coast Ecosystem Restoration Council.
ACTION: Proposed procedure; request for public comment.
-----------------------------------------------------------------------
SUMMARY: The Gulf Coast Ecosystem Restoration Council (Council)
requests public comment on proposed procedures for implementing the
National Environmental Policy Act (NEPA). The Council also requests
public comment on proposed categorical exclusions of actions the
Council has determined do not individually or cumulatively have a
significant effect on the human environment and, thus, should be
categorically excluded from the requirement to prepare an Environmental
Assessment (EA) or Environmental Impact Statement (EIS) under NEPA.
DATES: Comments on the proposed NEPA procedures and categorical
exclusions must be received by February 17, 2015.
ADDRESSES: Comments may be submitted through one of these methods:
Electronic Submission of Comments: Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. Electronic submission of comments allows
the commenter maximum time to prepare and submit a comment, ensures
timely receipt, and enables the Council to make them available to the
public.
Mail: Send to Gulf Coast Ecosystem Restoration Council, Attention
John Ettinger, 500 Poydras Street, Suite 1117, New Orleans, LA 70130.
Email: Send to [email protected].
In general, the Council will make such comments available for
public inspection and copying on its Web site, http://www.restorethegulf.gov without change, including any business or
personal information provided, such as names, addresses, email
addresses, or telephone numbers. All comments received, including
attachments and other supporting materials, will be part of the public
record and subject to public disclosure. You should only submit
information that you wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: Please send questions by email to
[email protected], or contact John Ettinger, (504) 444-
3522.
SUPPLEMENTARY INFORMATION:
I. Background
On July 6, 2012, the President signed the Resources and Ecosystems
Sustainability, Tourist Opportunities, and Revived Economies of the
Gulf Coast States Act of 2012 (``RESTORE Act'' or ``Act'') into law.
The Act establishes a new trust fund in the Treasury of the United
States, known as the Gulf Coast Restoration Trust Fund (Trust Fund).
Eighty percent of the administrative and civil penalties paid after
July 6, 2012, under the Federal Water Pollution Control Act in
connection with the DEEPWATER HORIZON Oil Spill will be deposited into
the Trust Fund. Under terms described in the Act, amounts in the Trust
Fund will be available for projects and programs that restore and
protect the environment and economy of the Gulf Coast region.
The Act is focused on the Gulf Coast region and has five
components. The Direct Component sets aside 35 percent of the penalties
paid into the Trust Fund for eligible activities proposed by the five
Gulf Coast states--Alabama, Florida, Louisiana, Mississippi, and
Texas--including local governments within Florida and Louisiana. The
Council-Selected Restoration Component sets aside 30 percent of the
penalties, plus half of all interest earned on Trust Fund investments,
to be managed by a new independent entity in the Federal government
called the Gulf Coast Ecosystem Restoration Council (Council). The
Council is comprised of members from six Federal agencies or
departments and the five Gulf Coast states. One of the Federal members,
the Secretary of Commerce, currently serves as Chairperson of the
Council. The Council will direct Council-Selected Restoration Component
funds to projects and programs for the restoration of the Gulf Coast
region, pursuant to an Initial Comprehensive Plan that has been
developed by the Council. Under the Spill Impact Component, the Gulf
Coast states can use an additional 30 percent of penalties in the Trust
Fund for eligible activities pursuant to plans developed by the states
and approved by the Council. The remaining five percent of penalties,
plus one-half of all interest earned on Trust Fund investments, will be
divided equally between the National Oceanic and Atmospheric
Administration (NOAA) RESTORE Act Science Program and a Centers of
Excellence Research Grants Program.
II. This Proposed Procedure
This proposed procedure, upon enactment, would establish the
Council's policy and procedures to ensure compliance with NEPA and
Council on Environmental Quality (CEQ) regulations for implementing
NEPA. Each Federal agency is required to develop NEPA procedures as a
supplement to the CEQ regulations. The Council's major responsibilities
are set out in greater detail in the RESTORE Act, and responsibilities
relative to the administration of Council-Selected Restoration
Component are further described below. The Council continues to
deliberate policies and procedures relative to implementation of the
Spill Impact Component. Information on such matters will be available
at a later date.
The NEPA procedures proposed below are applicable to Council
actions. Activities funded pursuant to any component of the Act may
also be subject to an environmental review under NEPA in instances
where there is a separate Federal action. For example, a restoration
project funded under the Direct Component would be subject to NEPA if
it required a permit to fill wetlands pursuant to Section 404 of the
Clean Water Act.
Council-Selected Restoration Component
The Act provides 30 percent of penalties deposited into the Trust
Fund to the Council, plus one-half of the interest earned on Trust Fund
[[Page 2382]]
investments, to carry out a Comprehensive Plan. In August 2013, the
Council issued the Initial Comprehensive Plan for Restoring the Gulf
Coast's ecosystem and economy. This Initial Comprehensive Plan provides
a framework to implement a coordinated region-wide restoration effort
to restore, protect, and revitalize the Gulf Coast. The Initial
Comprehensive Plan was accompanied by a Programmatic Environmental
Assessment.
Pursuant to the Act, the Council will develop a ``Funded Priority
List'' (or FPL) of projects and programs to be carried out to advance
the goals and objectives set forth in the Initial Comprehensive Plan,
subject to available funding. The Council will periodically update the
Initial Comprehensive Plan and the FPL, in accordance with the Act.
The FPL and subsequent updates will consist of a list of projects
and programs which the Council intends to fund for planning, technical
assistance, or implementation purposes. The Council anticipates that
once the full amount ultimately to be paid into the Trust Fund is
known, future amendments to the FPL will include significantly larger
projects and project lists that reflect the full amount available to be
spent for restoration activities. A Council commitment to fund
implementation of a project or program in the FPL is a Federal action
which requires the appropriate level of NEPA review. Examples of NEPA
compliance include application of a categorical exclusion, adoption of
existing NEPA documentation, or preparation of new NEPA documentation,
as warranted. The FPL may commit planning and technical assistance
funds for activities such as engineering, design, and environmental
compliance for projects and programs. According to the Initial
Comprehensive Plan, a Council commitment of planning or technical
assistance funds for a project or program in an FPL does not
necessarily guarantee that the Council will subsequently fund
implementation of the project or program. Should the Council
subsequently decide to fund implementation of the particular project or
program, it will ensure the appropriate level of NEPA compliance at
that time.
In developing and updating the FPL, the Council will seek to ensure
that the projects and programs contained therein reflect a
comprehensive approach for Gulf restoration, consistent with the Act
and the Initial Comprehensive Plan. To that end, the Council will build
upon existing restoration plans and strategies, engage the public,
ensure the FPL is based on sound science, and assess the cumulative
environmental impacts of projects and programs contained in the FPL, as
appropriate.
There has been extensive Gulf coast restoration planning conducted
at Federal, state, and local levels. This includes the Gulf Coast
Ecosystem Restoration Task Force Strategy (Task Force Strategy), as
well as state-level efforts, such as the Louisiana Comprehensive Master
Plan for a Sustainable Coast and the Mississippi Coastal Improvement
Program (MsCIP). In addition, watershed-level planning efforts have
been conducted by Gulf-based National Estuary Programs and other
stakeholder groups. The Council intends to build upon these planning
efforts in developing the initial FPL and subsequent updates.
The Council will engage the public in the development of the FPL
and subsequent updates. Public engagement conducted by the Council
members prior to development of the draft FPL will be considered in the
Council's project review and selection process. The public will also
have an opportunity to review and comment on the draft FPL. Where
applicable, the NEPA processes for specific projects and programs in
the FPL will also provide opportunities for public input. The public
would have the opportunity to provide input during the scoping of
Environmental Impact Statements (EISs) as well as an opportunity to
review and comment on draft EISs. Under some circumstances, as detailed
in the draft NEPA procedures, the public would also have an opportunity
to review and comment on draft Environmental Assessments (EAs).
Independent scientific review of the projects and programs
nominated for inclusion in the FPL will help ensure that all funded
activities are based on the best available science. The Council
anticipates that a number of the projects and programs nominated for
inclusion in the FPL will be derived from existing restoration plans,
which have already undergone independent scientific review. In such
cases, the Council's independent scientific review process would
complement the scientific foundation established within the respective
planning process.
The Council will ensure that the evaluations of projects and
programs in the initial FPL and subsequent updates effectively assess
potential cumulative impacts in accordance with NEPA, which requires a
Federal agency to consider the incremental environmental impacts of the
proposed action when combined with relevant past, present, and
reasonably foreseeable future actions. The cumulative impact
assessments will generally be tailored to the area of influence of the
given activity. For example, a project with a large area of influence
(such as a river diversion) would have a commensurately broader
assessment of cumulative effects, while one with a limited area of
influence (such as a small vegetative planting project) would have a
more limited assessment of potential cumulative effects. To the extent
appropriate, the assessment of cumulative impacts will draw upon
existing information in relevant ongoing and completed NEPA documents,
including the Initial Comprehensive Plan Programmatic EA, the Deepwater
Horizon Natural Resources Damage Assessment Early Restoration
Programmatic EIS, the Louisiana Coastal Area Ecosystem Restoration Plan
Programmatic EIS, the MsCIP Programmatic EIS, and others. Among other
potential benefits, effective cumulative impact assessments can help
ensure that Council decisions regarding specific restoration projects
are informed with a broader understanding of the relationship between
such projects and other restoration activities, whether supported by
the RESTORE Act or another funding source.
III. Classification
Regulatory Planning and Review (Executive Orders 12866 and 13563)
As an independent Federal entity that is composed of, in part, six
Federal agencies, including the Departments of Agriculture, the Army,
Commerce, and the Interior, the Department in which the Coast Guard is
operating, and the Environmental Protection Agency, the requirements of
Executive Orders 12866 and 13563 are inapplicable to these proposed
procedures.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires the Council to consider
whether a document would have a significant economic impact on a
substantial number of small entities. ``Small entities'' include small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, and governmental
jurisdictions with populations under 50,000. The proposed NEPA
procedures would apply to Council actions and applicants for funding
under the Council-Selected Restoration Component of the Act. These
applicants are limited by the Act to the Federal and state members of
the Council. Therefore, the Council hereby
[[Page 2383]]
certifies that these proposed procedures would not have a significant
economic impact on a substantial number of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act, the Council must have approval
from the Office of Management and Budget (OMB) before collecting
information from the public (such as forms, general questionnaires,
surveys, instructions, and other types of collections). According to
these proposed NEPA procedures, applicants for funding under the
Council-Selected Restoration Component could be required to prepare and
submit NEPA documentation to the Council prior to a decision on whether
to fund a given activity. These applicants would be limited to the
Federal and state members of the Council and NEPA submissions would be
unique to each individual project or program selected for inclusion in
the FPL. These proposed procedures would not lead to the collection of
information. On this basis, the Council has determined that these
proposed procedures would not create any new information collection
requirements for the public.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires the Council to engage in regular and
meaningful consultation and collaboration with tribal officials in the
development of Federal policies that have tribal implications.
``Policies that have tribal implications'' refers to regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. These proposed NEPA
procedures apply to the Council and its members, insofar as such
members choose to apply for funding under the Council-Selected
Restoration Component of the Act. Among other policies, these proposed
NEPA procedures establish Council policy regarding coordination and
consultation with tribal governments in NEPA processes conducted under
the Council-Selected Restoration Component, where applicable. These
proposed NEPA procedures do not in any way alter the right of tribal
governments to engage in NEPA processes conducted by the Council. These
proposed NEPA procedures are intended to foster effective communication
with tribal governments in that regard. The Council has therefore
determined that these proposed NEPA procedures would not have tribal
implications as the term is used pursuant to Executive Order 13175.
Executive Order 12898: Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations
Executive Order 12898 directs Federal agencies, to the greatest
extent practicable and permitted by law, to make environmental justice
part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and/or low-income populations. The Council's proposed NEPA
procedures specifically call for the consideration of potential
environmental justice issues in the development of Environmental Impact
Statements, and reference the need to address Executive Order 12898,
where applicable. The Council has therefore determined that these
proposed NEPA procedures do not raise any environmental justice
concerns.
National Environmental Policy Act
The Council on Environmental Quality regulations do not direct
agencies to prepare a NEPA analysis or document before establishing
Agency procedures (such as those proposed here) that supplement the CEQ
regulations for implementing NEPA. Agencies are required to adopt NEPA
procedures that establish specific criteria for, and identification of,
three classes of actions: those that normally require preparation of an
environmental impact statement; those that normally require preparation
of an environmental assessment; and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). Categorical
exclusions are one part of those agency procedures, and therefore
establishing categorical exclusions does not require preparation of a
NEPA analysis or document. Sierra Club v. Bosworth, 510 F.3d 1016,
1025-26 (9th Cir. 2007); Heartwood, Inc. v. U.S. Forest Service, 230
F.3d 947, 954-55 (7th Cir. 2000). Agency NEPA procedures are procedural
guidance to assist agencies in the fulfillment of agency
responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.
Gulf Coast Ecosystem Restoration Council's Procedures for Considering
Environmental Impacts
Table of Contents
Sec. 1. Purpose
Sec. 2. Authority
Sec. 3. Definitions and Acronyms
Sec. 4. Actions Covered
Sec. 5. Timing
Sec. 6. Coordinating NEPA on Joint Actions
Sec. 7. Applicants for Funding
Sec. 8. Consultants
Sec. 9. Public Involvement for Environmental Impact Statements
Sec. 10. Environmental Assessment
Sec. 11. Finding of No Significant Impact
Sec. 12. Environmental Impact Statement
Sec. 13. Contents of an Environmental Impact Statement
Sec. 14. Programmatic Environmental Review
Sec. 15. Record of Decision
Sec. 16. Effective Date
Sec. 1. Purpose
This document establishes the Gulf Coast Ecosystem Restoration
Council's (Council) policy and procedures (Procedures) to ensure
compliance with the requirements set forth in the Council on
Environmental Quality (CEQ) regulations 40 CFR parts 1500 through 1508
implementing the provisions of the National Environmental Policy Act
(NEPA), 42 U.S.C. 4321-4347. These procedures also address compliance
with other related statutes and directives. More specifically, these
Procedures implement the CEQ NEPA regulations requirement that agencies
adopt supplemental NEPA procedures.
Sec. 2. Authority
NEPA and its implementing regulations establish a broad national
policy to protect and enhance the quality of the human environment, and
develop programs and measures to meet national environmental goals.
Section 101 of NEPA sets forth Federal policies and goals to encourage
productive harmony between people and their environment. Section 102(2)
provides specific direction to Federal agencies, described as ``action-
forcing'' in the CEQ regulations, to further the goals of NEPA. These
major provisions include requirements to use a systematic,
interdisciplinary approach to planning and decision-making (section
102(2)(A)) and develop methods and procedures to ensure appropriate
consideration of environmental values (section 102(2)(B)). Section
102(2)(C) requires preparation of a detailed statement for major
Federal actions significantly affecting the quality of the human
[[Page 2384]]
environment that analyzes the impact of and alternatives to the action.
Policy. It is the Council's policy to:
(a) Comply with NEPA and other environmental laws, regulations,
policies, and Executive Orders applicable to Council actions;
(b) Seek and develop partnerships and cooperative arrangements with
other Federal, tribal, state, and local governments early in the NEPA
process to help ensure efficient regulatory review of Council actions;
(c) Ensure that applicable NEPA compliance and its documentation
includes public involvement appropriate to the action being proposed
and its potential impacts;
(d) Interpret and administer Federal laws, regulations, Executive
Orders, and policies in accordance with the policies set forth pursuant
to NEPA, to the fullest extent possible;
(e) Consider the potential environmental impacts of Council actions
as early in the planning process as possible; and
(f) Consult, coordinate with, and consider policies, procedures,
and activities of other Federal agencies, as well as tribal, state, and
local governments.
Applicability. These Procedures are intended to supplement CEQ's
NEPA regulations, which also apply to proposed actions by the Council
and are incorporated herein by reference.
Depending on the nature of the proposed action and its potential
impacts on the human environment, Council actions may be categorically
excluded (CE) from additional NEPA review by the Council, or require
the preparation of an Environmental Assessment (EA) or an Environmental
Impact Statement (EIS). An EA results in a Finding of No Significant
Impact (FONSI) or a decision to prepare an EIS. The Council need not
prepare an EA prior to an EIS; rather, if the Council believes the
proposed action may significantly affect the quality of the human
environment, it may proceed directly to preparation of an EIS. An
applicant for funding may assist the Council, either by preparing the
appropriate level of environmental analysis or hiring an environmental
consultant to do so, as appropriate, for proposed actions. These
Procedures will apply to the fullest extent practicable to proposed
Council actions and environmental documents begun but not completed
before these Procedures take effect. They do not apply, however, to
decisions made and draft or final environmental documents completed
prior to the date on which these Procedures take effect.
Sec. 3. Definitions and Acronyms
The definitions contained within CEQ's regulation at 40 CFR part
1508 apply to these Procedures. Additional and expanded definitions and
acronyms are as follows:
(a) ``Council'' means the Gulf Coast Ecosystem Restoration Council.
(b) ``Council Action'' is an action taken by the Council
potentially subject to NEPA. Council Actions may be wholly or partially
funded by the Council. Council Actions include but are not limited to
awarding grants, contracts, purchases, leases, construction, research
activities, rulemakings, and amendment or revision of a Comprehensive
Plan.
(c) ``CE'' means Categorical Exclusion.
(d) ``CEQ'' means the Council on Environmental Quality.
(e) ``EA'' means an Environmental Assessment.
(f) ``EIS'' means an Environmental Impact Statement.
(g) ``EPA'' means the U.S. Environmental Protection Agency.
(h) ``Executive Director'' means the Executive Director of the Gulf
Coast Ecosystem Restoration Council.
(i) ``FONSI'' means a Finding of No Significant Impact.
(j) ``NEPA Documents'' are any of the following:
(1) Documentation associated with use of a CE;
(2) Environmental Assessment;
(3) Finding of No Significant Impact;
(4) Notice of Intent to Prepare an EIS;
(5) Draft, Final, or Supplemental Environmental Impact Statement;
(6) Record of Decision; and
(7) Notice of Intent to Adopt an EA or EIS.
(k) ``Project Sponsor'' or ``Applicant'' is the entity that seeks
Council Action to fund a project or program.
(l) ``Record of Decision'' or ``ROD'', in cases requiring an EIS,
is the decision and public document based on the EIS (see 40 CFR
1505.2).
(m) ``Responsible Official'' is the person delegated authority by
the Council to make recommendations to the Council (or the Council's
designated decision-maker) regarding compliance with NEPA and in some
cases to implement decisions pertaining to NEPA (as described in these
Procedures or in the Council's Standard Operating Procedures).
Sec. 4. Actions Covered
(a) General Rule. The requirements of sections 5 through 15 of
these Procedures apply to Council Actions that are determined to be
Federal actions in accordance with this section.
(b) Federal Actions. For purposes of these Procedures, a Federal
action is any Council Action:
(1) With effects that may be major; and
(2) That is potentially subject to the Federal control and
responsibility of the Council. As described in the CEQ regulations, the
term ``major'' does not have a meaning independent of the term
``significantly'' (see 40 CFR 1508.18).
(c) Actions Categorically Excluded. The Council has determined that
certain categories of actions are eligible to use a CE for compliance
with NEPA, as they do not have a significant impact individually or
cumulatively on the quality of the human environment. A proposal is
categorically excluded if the Council determines the following:
(1) The proposed action fits within a class of actions that is
listed below;
(2) There are no extraordinary circumstances indicating the action
may have a significant effect (see subsection (e) of this Section); and
(3) The proposal has not been segmented to meet the definition of a
CE.
(d) The following categories of Council Actions are categorically
excluded from further NEPA review in an EA or EIS:
(1) Administrative and Routine Office Activities:
i. Administrative procurements (e.g., for general supplies) and
contracts for personnel services.
ii. Routine fiscal and administrative activities involving
personnel (e.g., recruiting, hiring, detailing, processing, paying,
supervising, and recordkeeping).
iii. Routine procurement of goods and services to support
operations and infrastructure, including routine utility services and
contracts, conducted in accordance with applicable procurement
regulations, Executive Orders, and policies.
iv. Routine administrative office functions (e.g., recordkeeping;
inspecting, examining, and auditing papers, books, and records;
processing correspondence; developing and approving budgets; responding
to requests for information).
v. Routine activities and operations conducted in an existing
structure that are within the scope and compatibility of the present
functional use of the building, will not result in a substantial
increase in waste discharge to the environment, will not result in
substantially different waste discharges from current or previous
activities, and will not result in emissions that exceed established
permit limits, if any.
[[Page 2385]]
vi. Council meetings, hearings, site visits, technical assistance,
public affairs activities, and/or training in classrooms, meeting
rooms, other facilities, or via the Internet.
(2) Regulation, Monitoring, and Oversight of RESTORE Act
Activities:
i. Promulgation or publication of regulations, procedures, manuals,
and guidance documents that are of an administrative, financial, legal,
technical, or procedural nature.
ii. Internal orders and procedures that need not be published in
the Federal Register under the Administrative Procedure Act, 5 U.S.C.
552.
iii. Preparation of studies, reports, or investigations that do not
propose a policy, plan, program, or action.
(3) Council Activities for Planning, Research or Design Activities
(Documentation Required):
i. Funding or procurements for activities which do not involve or
lead directly to ground-disturbing activities which may have
significant effects individually or cumulatively, and do not commit the
Council or its applicants to a particular course of action affecting
the environment, such as grants to prepare environmental documents,
planning, technical assistance, engineering and design activities, or
certain research. Use of this CE will be documented following the
procedures described in Section 4(f) of these Procedures.
(4) Council Funded Activities that Fall Under a CE of a Federal
Council Member (Documentation Required):
i. Any environmental restoration, conservation, or protection
activity that falls within a CE established by a Federal agency Council
member, provided no extraordinary circumstances preclude the use of the
CE and the Federal agency that established the CE is involved in the
Council action. A Federal agency Council member is involved in the
Council action when that Federal agency advises the Council that use of
the CE would be appropriate for the specific action under consideration
by the Council. Use of this CE will be documented following the
procedures described in Section 4(f) of these Procedures.
(e) Extraordinary Circumstances. Some Council Actions that would
normally be categorically excluded from further NEPA review in an EA or
EIS may not qualify for a CE because extraordinary circumstances exist
(see 40 CFR 1508.4). The Responsible Official, in cooperation with the
applicant as appropriate, will conduct a review to determine if there
are extraordinary circumstances. Such extraordinary circumstances are:
(1) A reasonable likelihood of substantial controversy regarding
the potential environmental impacts of the proposed action.
(2) Tribal concerns with actions that impact tribal lands or
resources.
(3) A reasonable likelihood of adversely affecting environmentally
sensitive resources. Environmentally sensitive resources include but
are not limited to:
i. Species that are federally listed or proposed for listing as
threatened or endangered, or their proposed or designated critical
habitats; and
ii. Properties listed or eligible for listing on the National
Register of Historic Places.
(4) A reasonable likelihood of impacts that are highly uncertain or
involve unknown risks or if there is a substantial scientific
controversy over the effects.
(5) A reasonable likelihood of air pollution at levels of concern
or otherwise requiring a formal conformity determination under the
Clean Air Act.
(6) A reasonable likelihood of a disproportionately high and
adverse effect on low income or minority populations (see Executive
Order 12898).
(7) A reasonable likelihood of contributing to the introduction or
spread of noxious weeds or non-native invasive species or actions that
may promote the introduction, or spread of such species (see Federal
Noxious Weed Control Act and Executive Order 13112).
(8) A reasonable likelihood of a release of petroleum, oils, or
lubricants (except from a properly functioning engine or vehicle) or
reportable releases of hazardous or toxic substances as specified in 40
CFR part 302 (Designation, Reportable Quantities, and Notification); or
where the proposed action results in the requirement to develop or
amend a Spill Prevention, Control, or Countermeasures Plan in
accordance with the Oil Pollution Prevention regulation.
The mere existence of any of the circumstances described above will
not necessarily trigger preparation of an EA or EIS. The determination
that an extraordinary circumstance exists and an EA or EIS is needed
will be based on the potential significance of the proposed action's
effects on the environment. If it is not clear whether a CE is
appropriate, the Responsible Official, after consulting with the
Council, may require preparation of an EA.
(f) Documented Categorical Exclusion. The purpose of CEs is to
reduce paperwork and streamline the project implementation process. The
NEPA does not require the Council to document actions that qualify for
a CE and do not involve extraordinary circumstances (see 40 CFR
1500.4(p)). When the Responsible Official chooses to document use of a
CE in addition to those identified in Section 4(d)(3) and Section
4(d)(4) of these Procedures, the documentation should include:
(1) A description of the proposed action.
(2) The CE relied upon, including the information or process used
to determine that no extraordinary circumstances are present.
(3) A determination by the Responsible Official that the CE
applies.
As a general matter, the Council will post documented CEs on its
Web site. The Council, however, generally will not publicly post
documentation supporting a CE for activities occurring on:
(1) Private lands; or
(2) Other lands under consideration by the Council for a project if
the release of such information could lead to impacts to sensitive
lands.
(g) Emergency Actions/Alternate Arrangements: In the event of an
emergency situation, the Council may need to take an action to prevent
or reduce the risk to the environment or public health or safety that
may affect the quality of human environment without having the time to
evaluate those impacts under NEPA. In some cases, the emergency action
may be covered by an existing NEPA analysis or a CE, while in other
cases, it may not.
(1) In cases where the Responsible Official, in consultation with
the Council, determines that an EIS is appropriate, the Council will
consult with CEQ about alternative arrangements for complying with NEPA
in accordance with 40 CFR 1506.11.
(2) In cases where the Responsible Official determines that an
environmental assessment is appropriate, the Responsible Official shall
consult with the Council to establish alternative arrangements for the
environmental assessment. Any such alternative arrangement for an EA
must be documented and a copy provided to CEQ.
(h) Actions Exempt from the Requirements of NEPA. Certain Council
Actions may be covered by a statutory exemption or EPA's functional
equivalence under existing law. The Council will document its use of
such an exemption pursuant to applicable requirements.
[[Page 2386]]
Sec. 5. Timing
(a) General. The potential environmental effects of a proposed
Council Action will be considered at the earliest practicable time
along with appropriate scientific, technical, and economic studies.
Coordination with appropriate federal, state, tribal, and local
authorities and, to the extent appropriate and described in these
Procedures, the public meetings, should begin at the earliest
practicable time. As a general matter, the project planning process
should include all environmental permit evaluation and review
requirements, including applicable timeframes when possible, so that
applicants for funding can collect necessary information and provide it
to the agency with jurisdiction or special expertise in a timely
manner. Applicants or consultants should complete these tasks at the
earliest possible time during project planning to ensure full
consideration of all environmental resources and facilitate the
Council's NEPA process.
(b) Applications for Funding. The Applicant may be responsible for
preparation of the appropriate level of proposed NEPA analysis for the
Council. An EA, EIS, or CE determination, as appropriate, will be
completed prior to the final decision by the Council to fund a proposed
project or program and should accompany the application through the
decision-making process.
(c) Council Initiated Actions. The EA or EIS, as appropriate, will
be completed prior to a decision by the Council to implement an action
that would have impacts on the environment and should accompany the
proposed action through the decision-making process.
Sec. 6. Coordinating NEPA on Joint Actions
Interagency coordination and collaboration can help ensure
efficient and effective NEPA processes. To that end, the Council will
serve as a Joint Lead, Lead Agency, or Cooperating Agency as
appropriate for the preparation of NEPA documents relevant to its
activities. Subsections (a) through (c) of this Section describe the
circumstances in which the Council may serve as Joint Lead, Lead
Agency, or Cooperating Agency, along with the general roles and
responsibilities associated with each. In general, the Council will
either be the Lead or Joint Lead Agency on all Council-initiated
actions subject to NEPA.
(a) Joint Actions. Where one or more Federal agencies, together
with the Council propose or are involved in the same action; are
involved in a group of actions directly related because of functional
interdependence or geographical proximity; or are involved in a single
program, the Responsible Official for the Council should seek to join
all such agencies in performing a joint NEPA analysis and, where
appropriate, other necessary environmental documentation.
(b) Lead Agency.
(1) The Council will follow CEQ's regulation regarding designation
of a Lead Agency when multiple Federal agencies are involved (40 CFR
1501.5). The Lead Agency should consult with the other participating
agencies to ensure that the joint action makes the best use of the
participating agencies' areas of jurisdiction and special expertise,
that the views of participating agencies are considered in the course
of the NEPA process, and that the compliance requirements of all
participating agencies are met.
(2) When another Federal agency is the Lead Agency, the Council may
act as either a Co-Lead Agency or a Cooperating Agency (as detailed in
subsection (c) of this Section), as appropriate.
(c) Cooperating Agency. When another Federal agency is a Lead
Agency for the preparation of a NEPA review (i.e., CE, EA, EIS) for a
proposed activity, the Council may be a Cooperating Agency. When the
Council is a Cooperating Agency on a joint action, the Responsible
Official will perform the functions stated in 40 CFR 1501.6(b) and
review the work of the Lead Agency to ensure that its work product will
satisfy the requirements of the Council under these Procedures. After
acting as a Cooperating Agency, the Council may adopt the NEPA document
prepared by the Lead Agency, consistent with 40 CFR 1506.3. The Council
will comply with the review and approval responsibilities contained in
these Procedures prior to signing any final NEPA decision document.
Sec. 7. Applicants for Funding
(a) General. The Council may require an applicant for funding to
prepare the requisite draft NEPA analysis of the proposed project and
to submit that analysis with the application. The Council may also
require an applicant to prepare and submit environmental information in
the form of a proposed EIS, proposed EA, or proposed documentation
supporting the application of a CE. This could include, for example, a
proposed draft EIS, proposed draft EA, proposed final EIS, or proposed
final EA, pending Council adoption/approval. Documentation supporting
application of a CE will normally be limited to a description of the
proposed activity, the CE relied upon, and the information or process
used to determine there are no extraordinary circumstances. The Council
may require the applicant to act as a Joint Lead Agency, depending on
whether the applicant is a Federal agency. Where appropriate, the
Council will cooperate with state and local agencies to conduct joint
processes, including joint environmental assessments and joint
environmental impact statements, provided such cooperation is fully
consistent with 40 CFR 1506.2.
(b) Information Required. When an applicant is required to submit
environmental documentation for a proposed project or program, the
Responsible Official, where appropriate, will specify the types and
extent of information required, consistent with the CEQ regulations,
these Procedures and any other applicable laws, regulations, Executive
Orders, or policies. The Responsible Official will work with applicants
early in the process, as appropriate, to assist in the development of
information responsive to sections 10 through 13 of these Procedures.
The project planning process should include all environmental
permitting and review requirements, including applicable timeframes
when possible, so that applicants for funding can collect necessary
information and provide it to the agency with jurisdiction or special
expertise in a timely manner.
(c) Limits on Actions by the Applicant. The Responsible Official
will inform an applicant that the applicant may not take any action
within the Council's jurisdiction that would have an adverse
environmental impact or limit the choice of reasonable alternatives,
prior to completion of the environmental review process by the Council
(see 40 CFR 1506.1).
(d) Council Responsibility. The Council is responsible for its own
compliance with Federal environmental laws, regulations, Executive
Orders, and policies. As appropriate, the Responsible Official will
solicit comments from interested parties on the environmental
consequences of any application.
The Responsible Official will independently evaluate and prepare a
recommendation to the Council regarding whether an applicant's
environmental documentation satisfies the requirements of the CEQ
regulations and these Procedures. In conducting this review, the
Responsible Official
[[Page 2387]]
will seek the advice of the Council Members and/or subject matter
experts, as appropriate. Upon approval by the Council, the
documentation will be considered to have been prepared by the Council
for purposes of sections 9 through 15 of these Procedures.
Sec. 8. Consultants
(a) General. The Council or applicants to the Council for funding
may use consultants in the performance of NEPA analysis and the
preparation of other environmental documents. The Responsible Official
must approve the use of a selected consultant before the consultant
begins performing analyses or preparing environmental documents related
to Council-funded proposals. The Responsible Official will review any
analysis performed and any documents prepared by a consultant to ensure
that they satisfy the requirements of these Procedures.
(b) Conflicts of Interest (40 CFR 1506.5(c)). The Responsible
Official will exercise care in selecting consultants and reviewing
their work to ensure that their analysis is complete and objective.
Consultants will execute a disclosure statement prepared by the
Responsible Official, certifying that they have no financial or other
interest in the outcome of the project.
(c) Council Responsibility (40 CFR 1506.5). The Council is
responsible for its own compliance with Federal environmental laws,
regulations, policies and Executive Orders, and cannot delegate this
responsibility to consultants. The Responsible Official will
independently evaluate any analysis performed and any documents
prepared by a consultant to ensure that they satisfy the requirements
of these Procedures. The Responsible Official will seek the advice of
subject matter experts and/or Council members, as appropriate.
Sec. 9. Public and Tribal Involvement for Environmental Impact
Statements
(a) Policy. Public involvement is encouraged in the environmental
analysis and review of a proposed Council Action.
(b) Procedures. After determining that a draft EIS should be
prepared, the Lead or Co-Lead agency will implement the following
procedures, at a minimum, to engage affected members of the public and
solicit public input:
(1) Develop a list of interested parties, including Federal,
regional, state, and local authorities, tribes, environmental groups,
individuals, businesses, and community organizations, as applicable.
(2) Publish a notice of intent in the Federal Register, and
initiate scoping in accordance with 40 CFR 1501.7 and 1508.22, and
notify directly those officials, agencies, organizations, tribes and
individuals with particular interest in the proposal. The Council shall
engage in Nation-to-Nation consultation, as required.
(3) Hold public scoping meetings as appropriate to the action.
(4) Circulate the draft EIS for comment to interested parties.
(5) Publicize the availability of the draft EIS by press release,
advertisement in local newspapers of general circulation, or other
suitable means such as posting the draft EIS on the Council's Web site.
As appropriate, the Council will also circulate the draft EIS and
supporting documents to public depositories, such as libraries. The EPA
will publish a notice of availability in the Federal Register which
will determine the appropriate duration of the public review and
comment period.
(6) If necessary or desirable, using the criteria in 40 CFR
1506.6(c), hold a public meeting or public hearing on the draft EIS. If
a public hearing is held, the draft EIS should be made available at
least 15 days prior to the hearing.
(7) Consider and respond to all substantive comments in the final
EIS and provide copies of the final EIS to all who request a copy of
the final EIS.
(c) List of Contacts. Interested persons may obtain information on
the Council's environmental process and on the status of EIS's issued
by the Council from the Responsible Official. The Council will provide
contact information on the Council's Web site and in other public
notices.
Sec. 10. Environmental Assessment
(a) Policy. The Responsible Official should perform, participate
in, or coordinate, as appropriate, the process of considering the
environmental impacts of a proposed Council Action at the earliest
practical time in the planning process. To the fullest extent possible,
steps to comply with all environmental laws, regulations, policies and
Executive Orders, as well as the requirements of the RESTORE Act, will
be undertaken concurrently.
(b) Scope. An EA should contain a brief discussion of the proposed
action; the purpose and need for the proposed action; an appropriate
range of reasonable alternatives to the proposed action, including a no
action alternative; an evaluation of the environmental impacts of the
proposed action and any identified alternatives; a list of the agencies
and persons consulted; a list of alternatives eliminated from further
analysis with an explanation of why they were eliminated; a list of all
applicable Federal environmental laws and requirements; and mitigation
measures needed to reduce environmental impacts to below the level of
significance (if applicable). The scope of environmental impacts
considered in the EA should include both beneficial and adverse
impacts; direct, indirect, and cumulative impacts; impacts of both
long- and short-term duration; as well as analysis of the effects of
any appropriate mitigation measures or best management practices that
are considered. The mitigation measures can be analyzed either as
elements of alternatives or in a separate discussion of mitigation.
The level of detail and depth of impact analysis should be limited
to documenting the potential impacts of the proposed action and whether
the proposed action would result in any significant adverse
environmental impacts. The EA should contain objective analyses to
support its environmental impact conclusions.
(c) Using Existing Environmental Analyses Prepared Pursuant to NEPA
and the CEQ Regulations.
(1) When available, the Responsible Official, or applicant if
applicable, should use existing NEPA analyses for assessing the impacts
of a proposed action and reasonable alternatives. Procedures for
adoption or incorporation by reference of such analyses must be
followed where applicable.
(2) If existing NEPA analyses include data and assumptions
appropriate for the analysis at hand, the Responsible Official, or
applicant if applicable, should use these existing NEPA analyses and/or
their underlying data and assumptions where feasible.
(3) An existing environmental analysis prepared pursuant to NEPA
and the CEQ regulations may be used in its entirety if the Responsible
Official determines, with appropriate supporting documentation, that it
adequately assesses the environmental effects of the proposed action
and reasonable alternatives. The supporting record must include an
evaluation of whether new circumstances, new information or changes in
the action or its impacts not previously analyzed may result in
significantly different environmental effects.
(4) The Responsible Official, or applicant if applicable, should
make the best use of existing NEPA documents by supplementing, tiering
to, incorporating by reference, or adopting previous environmental
analyses to avoid redundancy and unnecessary paperwork.
[[Page 2388]]
(d) Public Coordination on the EA/FONSI.
(1) Normally a draft FONSI need not be coordinated in advance
outside the Council prior to its issuance. Copies of approved FONSIs
will be available to the public, government agencies, or Congress upon
request at any time.
(2) The Council will post final EAs and approved FONSIs on its Web
site.
(3) To the extent appropriate and practicable, the Council may
provide the public with an opportunity to review and comment on draft
EAs. When the proposed action is, or is closely similar to, one which
normally requires an EIS as identified in Section 12 of these
Procedures, or when the nature of the proposed action is one without
precedent, the Council will make a draft EA available to the public for
review for a period of not less than 30 days before the final
determination is made by the Council. The Council will consider any and
all comments received prior to making a final decision regarding the
associated FONSI.
(e) Level of Analysis. The EA process should assess each impact
identified as relevant to the proposed action or alternatives. The
level of analysis of each impact should be guided by the following
factors:
(1) The likelihood of the potential effects;
(2) The magnitude of the potential effects; and
(3) Whether any adverse effects on the environment may be
significant, even if on balance the proposed project may be beneficial.
(f) Determination Based on the EA. On the basis of the EA, the
Responsible Official will determine whether the proposed action has a
potentially significant impact on the human environment and will make a
recommendation to the Council as to whether an EIS is needed. Based on
the Council's decision, the Responsible Official will take action in
accordance with subsections (f)(1) through (3) of this Section, as
applicable:
(1) If the Council decides that the proposed action will not have a
significant impact on the human environment, the Responsible Official
will prepare a draft FONSI in accordance with Section 11 of these
Procedures.
(2) If the Council decides that the proposed action has a
potentially significant impact, the Responsible Official will prepare a
NOI to prepare an EIS, and begin the scoping process (40 CFR 1501.7).
(3) If the proposed action will occur in a wetland or in a 100-year
floodplain, the Council will ensure an opportunity for public comment
on a draft of the EA. If such a situation is present, the EA also will
follow Section 13(h)(6) or (8) of these Procedures, as applicable.
Sec. 11. Finding of No Significant Impact
(a) General. A FONSI, as determined in accordance with Section 10
of these Procedures, is prepared for all Council Actions for which an
EIS is not required and a CE does not apply.
(b) Decision-making on the Proposed Action. The Council may not
commit itself or its resources to an action requiring an EA (but not an
EIS) until a FONSI has been approved in accordance with this Section.
(c) Staff Responsibilities.
(1) When required, the Responsible Official will prepare a draft
FONSI, which will include the EA, or a summary of it, and note any
other related environmental documents.
(2) After complying with subsection (c)(1) of this Section, the
Responsible Official will present the finding to the Council, which
will approve the FONSI or decide an EIS will be prepared. The Council
will authorize the Executive Director to sign FONSIs on behalf of the
Council.
(d) Representations of Mitigation. There may be situations in which
the Council relies on the implementation of certain measures to
mitigate the significance of the proposed action's environmental
impacts and bases its FONSI on the implementation of such measures.
Under such situations, the Council will ensure that the mitigation
measures are implemented. Where applicable, the Council will work with
the applicant to include appropriate mitigation measures as a grant
condition or as a contract provision. See, CEQ's Memorandum,
``Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact.''
(e) Changes and Supplements. If, prior to taking a final Council
Action for which a FONSI was prepared, a significant change is made
that would alter environmental impacts, or if significant new
information becomes available regarding the environmental impacts, the
Responsible Official, or applicant if applicable, will reevaluate the
EA to determine whether supplementation is necessary. If the EA is not
sufficient, the Responsible Official, or applicant if applicable, will
supplement the existing EA or prepare a new EA to determine whether the
changes or new information indicate the action may have a significant
impact. If, because of the change or new information, the proposed
action may have a significant impact, the Responsible Official, after
consulting with the Council, will issue an NOI to prepare an EIS and
begin the scoping process.
(f) Contents of a FONSI (40 CFR 1508.13). A FONSI may include the
EA or it may incorporate the EA by reference, in accordance with CEQ's
regulations. The FONSI may be combined with a Council decision-making
document or it may be limited to determining that an EIS is not
required. A FONSI should contain at least the following:
(1) Identification of the document as a FONSI;
(2) Identification of the Council;
(3) The title of the action;
(4) The preparer(s) of the document (i.e., a list of those persons
or organizations assisting in the preparation of the document);
(5) The month and year of preparation of the document;
(6) The name, title, address, and phone number of the person in the
Council who should be contacted to supply further information about the
document;
(7) A brief description of the proposed action;
(8) A brief description of, or reference to the page/section in the
EA that discusses, the alternatives considered;
(9) A brief discussion of, or reference to the page/section in the
EA that discusses, the environmental effects of the proposed action;
(10) Documentation of compliance with Sections 13(h)(6) and (8) of
these Procedures, if the proposed action will occur in a wetland or in
a 100-year floodplain;
(11) Reference to the page/section in the EA that provides the list
of all Federal permits, licenses, and any other approvals or
consultations which must be obtained in order to proceed with the
proposal;
(12) A discussion of mitigation measures and environmental
commitments that will be implemented, if applicable;
(13) A conclusion that the preferred alternative, and where
appropriate any other reasonable alternative(s), has no potentially
significant impact; and
(14) The Executive Director's signature indicating the approval of
the Council as detailed in subsection (c) of this Section.
Sec. 12. Environmental Impact Statement
(a) General. The Council will prepare an EIS for Council Actions
with potentially significantly impacts, as
[[Page 2389]]
determined in accordance with Section 10 of these Procedures.
(b) Decision-making on the Proposed Action. The Council may seek a
waiver from the EPA of the time limit requirements of 40 CFR 1506.10
for compelling reasons of national policy.
(c) Staff Responsibilities and Timing.
(1) The Council, or applicant if applicable, should begin the
process for preparation of an EIS as soon as it determines, or the EA
performed in accordance with Section 10 of these Procedures discloses,
that the proposed action has potentially significantly environmental
impacts.
(2) If the Council is the Lead Agency or Joint Lead, the
Responsible Official will issue an NOI and undertake the scoping
process identified in 40 CFR 1501.7 as soon as the Council decides to
prepare an EIS.
(3) In preparing a draft EIS, the Responsible Official, or
applicant if applicable, will consider any scoping comments, develop
the relevant analysis, and engage in applicable coordination in
accordance with CEQ's regulations and Section 13 of these Procedures.
(4) The Responsible Official will submit the proposed draft EIS to
the Council.
(5) A draft EIS may be formally released outside the Council only
after approval by the Council.
(6) The Responsible Official will direct electronic distribution of
the draft EIS as follows: EPA; all interested Council regional and
state offices; all Federal agencies that have jurisdiction by law or
special expertise with respect to the environmental impacts of the
proposed action; tribal, state, and local government authorities; to
the extent practicable and appropriate, public libraries in the area to
be affected by the proposed action; and all other interested parties
identified during the preparation of the draft EIS that have requested
a copy. Hard copies will be made available upon request. Public notice
will be designed to reach potentially interested or affected
individuals, governments, and organizations. In addition, the draft EIS
will be made available on the Council's Web site concurrently with the
public comment period.
(7) The draft EIS will be made available for public and agency
comment for at least 45 days from the date when EPA publishes its
Notice of Availability (NOA) in the Federal Register. The time period
for comments on the draft EIS will be specified in a prominent place in
the NOA and on the coversheet of the draft EIS. Public comments must be
provided to the person designated in the public notice.
(8) Where a public hearing is to be held on the draft EIS, as
determined in accordance with Section 9(b)(6) of these Procedures, the
draft EIS will be made available to the public at least 15 days prior
to the hearing (see 40 CFR 1506.6).
(9) The Responsible Official will consider substantive comments
received on the draft EIS. If a final EIS is not submitted to the
Council for approval within three years from the date of the draft EIS
circulation, the Responsible Official or applicant, as appropriate,
will prepare a written reevaluation of the draft to determine whether
the draft EIS warrants supplementation due to changed circumstances or
new information. If so, a supplement to the draft EIS or a new draft
EIS will be prepared and circulated as required by subsections (c)(1)
through (9) of this Section. If the draft EIS does not warrant
supplementation, the Responsible Official will prepare the final EIS.
(10) The Responsible Official will submit the final EIS and draft
ROD to the Council for a decision (see Section 15 of these Procedures).
(11) The ROD will become final upon signature of the Executive
Director. The Council will delegate authority for signature of RODs to
the Executive Director, provided such RODs are first approved by the
Council.
(12) The Responsible Official will direct electronic distribution
of the final EIS and ROD as follows: EPA; all interested Council
regional and state offices; state, tribal, and local authorities; to
the extent practicable, public libraries in the area affected by the
proposed action; Federal agencies and other parties who commented
substantively on the draft EIS; and all agencies, organizations, or
individuals that have requested a copy. Hard copies will be provided
upon request. The final EIS and ROD will be posted on the Council's Web
site and notice will go out to interested parties who have asked to
receive notice.
(13) If major steps toward implementation of the proposed action
have not commenced, or a major decision point for actions implemented
in stages has not occurred, within three years from the date of
publication of the final EIS, the Responsible Official will prepare a
written evaluation of whether the final EIS warrants supplementation.
The Responsible Official will submit this evaluation to the Council.
(d) Changes and Supplements. Where a draft or final EIS has been
prepared for a proposed Council Action, and substantial changes to the
proposal are made or significant new circumstances or information comes
to light that is relevant to environmental concerns and bears on the
proposed action or its impacts, the Responsible Official, or applicant
if appropriate, will prepare a supplement to the original draft or
final EIS. Such a supplement will be processed in accordance with
subsections (c)(3) through (13) of this Section. The Responsible
Official will determine whether, and to what extent, any portion of the
proposed action is unaffected by the planning change or new
information. Where appropriate, Council decision-making on portions of
the proposed action having utility independent of the affected portion
may go forward regardless of the concurrent processing of the
supplement, so long as the EIS and ROD are completed for those actions
having independent utility and the NOI for the supplemental NEPA
analysis and documentation articulates the basis for determining
independent utility.
(e) Representations of Mitigation. Where a final EIS has
represented that certain measures will be taken to mitigate the adverse
environmental impacts of an action, the Council will include the
mitigation measures, and any appropriate monitoring wherever
appropriate, as a condition of funding or, where appropriate, contract
provisions. If necessary, the Council may take steps to enforce
implementation of such mitigation measures.
(f) Contents of an EIS. The contents of both a draft and final EIS
are detailed in the CEQ regulations and Section 13 of these Procedures.
Recognizing that CEQ regulations allow the combination of NEPA
documents with other agency documents and that the Council may find it
practical to do so, format and page limitations on EIS's should follow
those set out in 40 CFR 1502.7 and 1502.10, to the extent practicable.
An EIS should avoid extraneous data and discussion. The text of an EIS
should be written in plain language, comprehensible to a lay person.
Technical materials should be placed into appendices, produced as
stand-alone reports available on the Council's Web site, or made
available in hard copy by request. Graphics and drawings, maps, and
photographs may be used as necessary to clarify the proposal and its
alternatives. The sources of all data used in an EIS will be noted or
referenced in the EIS. Previous NEPA analyses should be used, where
available, to ensure efficient preparation of an EIS. As appropriate,
previous NEPA analyses can be tiered to, incorporated by reference, or
may be adopted into the document consistent with CEQ's
[[Page 2390]]
regulations and the process detailed above in Section 10(c) of these
Procedures. See 40 CFR 1502.20, 1502.21, and 1508.28.
Sec. 13. Contents of an Environmental Impact Statement
To the fullest extent possible, the Responsible Official, Lead
Agency, or applicant, will concurrently draft the EIS while seeking
compliance with other applicable environmental requirements.
In addition to the requirements of 40 CFR 1502.10 through 1502.18,
and subject to the general provisions of Section 12 of these
Procedures, an EIS should contain the following:
(a) Identification of the Council.
(b) The Responsible Official who prepared or oversaw preparation of
the document.
(c) The month and year the document was prepared.
(d) In a draft EIS, the name, title, and address of the person in
the Council to whom comments on the document should be addressed, and
the date by which comments must be received to be considered. Typically
this will be the Responsible Official.
(e) A list of those persons, organizations, or agencies assisting
the Council in the preparation of the document.
(f) In a final EIS, a list of all agencies, organizations, or
persons from whom comments were received on the draft EIS.
(g) A short, introductory description of the environment likely to
be affected by the proposed action, including a list of all states,
counties, and local areas likely to be affected.
(h) Consistent with the description provided in 40 CFR 1502.16, an
analysis of the environmental consequences of the proposed action. The
following areas should be considered in the environmental analysis,
although their discussion--and the extent of that discussion--in the
EIS is dependent on their relevance:
(1) Air quality. There should be an assessment of the consistency
of the proposal and alternatives with Federal and state plans for the
attainment and maintenance of air quality standards.
(2) Water quality. There should be an assessment of the consistency
of the alternatives with Federal and state standards concerning
drinking water, storm sewer drainage, sedimentation control, and non-
point source discharges such as runoff from construction operations.
The need for any permits under sections 402 and 404 of the Clean Water
Act (33 U.S.C. 1342 and 1344) and Section 10 of the Rivers and Harbors
Act should also be assessed.
(3) Noise. The alternatives should be assessed with respect to
applicable Federal, state, and local noise standards.
(4) Solid waste disposal. The alternatives should be assessed with
respect to state and local standards for sanitary landfill and solid
waste disposal.
(5) Natural ecological systems. The EIS should assess both short-
term (e.g., construction period) and long-term impacts of the
alternatives on wildlife, vegetation, and ecological processes in the
affected environment.
(6) Wetlands. In accordance with Executive Order 11990, the EIS
should determine whether any of the alternatives will be located in a
wetland area. If the proposed action is located in a wetland area, the
final EIS should document a determination by the Responsible Official
that there is no practicable alternative to such location, and that the
proposed action includes all practicable measures to minimize harm to
wetlands which may result from such use.
(7) Protected species. If applicable, the EIS will discuss the
impacts of the alternatives on species that are listed or proposed for
listing as threatened or endangered under the Endangered Species Act,
or the proposed or designated critical habitats for such species;
protected species under the Marine Mammal Protection Act; and birds
protected under the Migratory Bird Treaty Act. In such cases, the EIS
should discuss any consultation or coordination, as appropriate, with
the appropriate Federal agency.
(8) Flood hazard evaluation and floodplain management. Under E.O.
11988, Federal agencies proposing activities in a 100-year floodplain
are directed to consider alternatives to avoid adverse effects and
incompatible development in the floodplain. If no practicable
alternatives exist to siting an action in the floodplain, the EIS
should discuss how the action will be designed to minimize potential
harm to or within the floodplain.
(9) Coastal zone management. If applicable, the EIS should discuss
to what extent the alternatives are consistent with approved coastal
zone management programs in affected states, as required by section
307(c)(2) of the Coastal Zone Management Act, 16 U.S.C. 1456(c)(2).
(10) Essential Fish Habitat (EFH). If applicable, the EIS will
identify any EFH that could be impacted by the alternatives. Actions
that could have the potential to affect EFH require consultation with
the National Oceanic and Atmospheric Administration under the Magnuson-
Stevens Act to evaluate potential impacts to designated EFH and
minimize these impacts. The final EIS should document these
consultations.
(11) Use of natural resources other than energy, such as water,
minerals, or timber.
(12) Aesthetic environment and scenic resources. The EIS should
identify any significant aesthetic changes likely to occur in the
natural landscape and in the developed environment.
(13) Land use. The EIS should assess the impacts of each
alternative on local land use controls and comprehensive regional
planning, as well as on development within the affected environment,
including, where applicable, other proposed federal actions in the
area.
(14) Socioeconomic environment. The EIS should assess the number
and kinds of available jobs likely to be affected by the alternatives.
For each alternative considered, the EIS should also discuss the
potential for community disruption or cohesion, the possibility of
demographic shifts, and impacts on local government services and
revenues.
(15) Public health and public safety. The EIS should assess
potential environmental impacts relevant to public health and safety.
For example, the EIS should assess the transportation or use of any
hazardous materials that may be involved in the alternatives, and the
level of protection afforded residents of the affected environment from
construction period and long-term operations associated with the
alternatives.
(16) Recreation areas and opportunities. The EIS should assess the
impacts of the alternatives on recreational activities, including
impacts on non-site-specific activities, such as hiking and bicycling,
and impacts on non-activity-specific sites such as those designated
``open space.''
(17) Environmental Justice. The EIS should address environmental
justice considerations as required by Executive Order 12898, ``Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations.''
(18) Sites of historical, archeological, architectural, or cultural
significance. In accordance with Section 106 of the National Historic
Preservation Act, 16 U.S.C. 470(f), and its implementing regulations,
36 CFR part 800, the EIS should identify all properties included in or
eligible for inclusion in the National Register of Historic Places that
may be affected by the preferred alternative and other reasonable
[[Page 2391]]
alternatives. The EIS also should include documentation of the status
of consultation with the appropriate State Historic Preservation
Officer (SHPO) or Tribal Historic Preservation Officer (THPO). The EIS
should discuss the criteria of adverse effect on historic properties
(36 CFR 800.5) with regard to each alternative. The final EIS should
include documentation of the status of consultation with the
appropriate SHPO(s) or THPO(s). In the event that the Responsible
Official, in consultation with the SHPO or THPO, finds that a proposed
action will have an adverse effect on such a site, the final EIS also
should include documentation of the status of subsequent consultation
with the Advisory Council on Historic Preservation.
(19) Climate Change. The EIS should estimate the greenhouse gas
emissions associated with the alternatives, as appropriate, and
consider mitigation measures. The EIS should also consider the effects
that climate change may have on the proposed alternatives, and consider
adaptation alternatives, where appropriate.
(20) Hazardous, radioactive, and toxic waste. The EIS should assess
the consistency of the alternatives with Federal and state requirements
concerning hazardous, radioactive, and toxic waste management in the
program or project area.
(i) A description of the impacts of the alternatives and a detailed
description of mitigation measures available or planned to avoid,
minimize, rectify, reduce over time, or compensate each adverse impact,
if not included in the alternatives. Impacts and mitigation measures
should be identified in a table as long-term and/or short-term as
applicable. This part of the EIS should also include a summary of any
irreversible or irretrievable commitments of resources that would be
likely to result from the alternatives.
(j) A brief discussion of the relationship between local short-term
uses of the environment affected by the alternatives, and the
maintenance and enhancement of long-term productivity.
(k) A compilation of all applicable Federal, state, and tribal
permits, licenses, and approvals which are required before the proposed
action may commence. The final EIS should document compliance with the
requirements of all applicable Federal environmental laws, regulations,
Executive Orders, and policies. If compliance is not possible by the
time of final EIS issuance, the final EIS should discuss the status of
compliance and should specify that all applicable environmental
compliance requirements must be addressed prior to project
implementation.
(l) The final EIS should provide a synopsis or compilation of
substantive comments received on the draft EIS, whether made in writing
or orally at a public hearing, and responses to comments. The response
to those comments should be consistent with the procedures set forth in
CEQ's regulations (40 CFR 1503.4). Comments may be collected and
summarized, except for comments by other Federal agencies which should
be provided in total and where otherwise required by Federal law or
regulation. Before the EIS is put into final form, every effort should
be made to resolve significant issues with the Federal or state
agencies administering Federal laws. The final EIS will describe such
issues, consultations and efforts to resolve such issues, and provide
an explanation of why any remaining issues have not been resolved.
Sec. 14. Programmatic Environmental Review
(a) A programmatic NEPA analysis is used to assess the
environmental impacts of a proposed action that is broad in reach;
analysis of subsequent actions that fall within the program may be
tiered to such analyses, as described in the CEQ regulations (40 CFR
1502.20 and 1508.28). A programmatic analysis may be used for proposed
policies, plans, and programs that address a given geographic area,
common environmental impacts to a class of actions, or activities that
are not location-specific.
(b) Programmatic NEPA analyses may take the form of a programmatic
environmental assessment or environmental impact statement.
(c) Programmatic NEPA analyses may be used when there are
limitations on available information or uncertainty regarding the
timing, location, and environmental impacts of subsequent implementing
actions.
(d) A programmatic NEPA analysis may also provide the basis for
decisions regarding proposed projects prior to the Council's
consideration of the impacts for specific projects (e.g., applicable
mitigation measures, identifying alternatives). This analysis can also
programmatically address potential cumulative and indirect effects.
This provides an opportunity to tier the consideration of the
subsequent action to the programmatic analysis, avoiding duplicative
efforts.
(e) The document should identify program-level alternatives and
assess the broad program-wide environmental impacts. To the extent
information is available, it should also identify the reasonable
alternatives to and potential impacts of project-specific Council
Actions within the program, and the impacts on resources.
(f) Where a programmatic environmental document has been prepared,
the Responsible Official may examine each project-level action
encompassed by the programmatic document to determine whether the
project-level action has been sufficiently analyzed in the programmatic
document to determine whether and what additional analysis is
appropriate.
(g) For any project-level action, the Council, or project
applicant, will prepare additional environmental documentation as
required by these Procedures, unless the documentation prepared for the
programmatic action satisfies the requirements of these Procedures.
Project-level documentation should reference and summarize the
programmatic document and limit the discussion to the unique
alternatives to, impacts of, and mitigation for the project.
(h) An environmental assessment prepared in support of an
individual proposed action can be tiered to a programmatic or other
broader-scope environmental impact statement. An environmental
assessment may be prepared, and a finding of no significant impact
reached, for a proposed action with significant effects, whether
direct, indirect, or cumulative, if the environmental assessment is
tiered to a broader environmental impact statement which fully analyzed
those significant effects. Tiering to the programmatic or broader-scope
environmental impact statement would allow the preparation of an
environmental assessment and a finding of no significant impact for the
individual proposed action, so long as any previously unanalyzed
effects are not significant. A finding of no significant impact other
than those already disclosed and analyzed in the environmental impact
statement to which the environmental assessment is tiered may also be
called a ``finding of no new significant impact.''
Sec. 15. Record of Decision
(a) General. The Responsible Official will prepare a draft ROD when
the Council is prepared to make a final decision on the proposed
action. The timing of the agency's decision will follow the
requirements of 40 CFR 1506.10. The draft ROD may be processed
concurrently with the final EIS. If the draft ROD is processed
subsequently, it will follow the same approval process as a final EIS.
[[Page 2392]]
(b) Contents. The ROD will include a description of the proposed
action and the environmental information specified in 40 CFR 1505.2. A
ROD may be conditioned upon the approval of permits, licenses, and/or
approvals that were not complete prior to issuance of the ROD.
(c) Changes. If the Council wishes to take an action not identified
as the preferred alternative in the final EIS, or proposes to make
substantial changes to the findings discussed in a draft ROD, the
Council will revise the ROD and process it internally in the same
manner as EIS approval, in accordance with Section 12(c) of these
Procedures.
Will D. Spoon,
Program Analyst.
[FR Doc. 2015-00681 Filed 1-15-15; 8:45 am]
BILLING CODE 6560-58-P