National Environmental Policy Act (NEPA) Overview - Helen Clough, Judith Kurtzman

Clough, Helen - Department of the Interior, U.S. Fish and Wildlife Service, retired
Judith Kurtzman - Utah State University

The National Environmental Policy Act (NEPA) has been in effect for over 40 years. The current federal regulations that implement the law have been in place for almost 30 years. Federal agencies with river management responsibilities have similar rules and procedures for implementing NEPA. This session will provide a general overview of NEPA with emphasis and examples relevant to rivers and river management.

Topics covered include the purpose and procedural requirements of NEPA; how NEPA is used in making decisions; applicability of NEPA; different levels of NEPA analysis including Environmental Impact Statements, Environmental Assessments, and Categorical Exclusions. The basic components of NEPA analysis including public involvement will be covered. There will be a brief discussion of other related laws and how NEPA is integrated into natural resource agency planning and decision making. Relevant examples from river management will be discussed.

This session is a prerequisite for those with little or no knowledge of NEPA.

1. National Environmental Policy Act Overview River Management Society Denver, Colorado April 15, 2014 1

2. NEPA History Events of the 1940s, 1950s, 1960s paved the way for passage Passed by Congress December 23, 1969 Signed by President Richard Nixon January 1, 1970 2

3. NEPA Prevent or eliminate damage to the environment Create/maintain harmony between people and the environment Understand ecological systems and natural resources Establish a Council on Environmental Quality (CEQ) 3

4. NEPA Mandates Integrated interdisciplinary approach Natural and social sciences and environmental design arts Ensures that the environment is given consideration in planning and decision making Disclosure/informed decisions Public involvement 4

5. NEPA Implementation Law CEQ Regulations (apply to all) Agency regulations (both Departmental level and individual agencies) Agency policies Agency handbooks Regional/local procedures 5

6. NEPA The courts have found ~ nothing in NEPA prohibits “unwise decisions” only “environmentally uninformed” decisions Other laws may impose more substantive environmental obligations 6

7. Major Federal Actions New and continuing Activities Funding Permits Categories of activities Plans Policies Programs Projects 7

8. Significance Context Society as a whole Regional local Intensity Severity of impacts Degree of controversy Uncertainty of impacts Cumulative impacts Cultural resources, endangered species 8

9. Significance Defined by thresholds Policy or law Science Decision maker’s opinion (politics, public pressure, personal beliefs) 9

10. NEPA Documents 3 Primary NEPA Documents: Categorical Exclusions (CEs or CATEXs) Environmental Assessments (EAs) Environmental Impact Statements (EISs) 10

11. Categorical Exclusions (CE/CATEX) CEQ § 1508.4 A proposed action qualifies for a CE/CATEX: When the action would not individually or cumulatively cause a significant impact on the human environment. Matches a category in the Agency’s list of CEs/CATEXs in their published NEPA Regulations. No extraordinary circumstances could occur. 11

12. Effect historic resources (NRHP) Impact ESA listed or proposed species Violates a federal, state, or tribal law Effects environmental justice Limits access to Indian sacred sites or affects the integrity of the site Contributes to introduction or spread of noxious/invasive weeds Public health or safety Natural resources or unique geographic characteristics (e.g., recreation, wetlands, wilderness) Highly controversial effects/unresolved conflicts High uncertainty ~ risk Establish precedent Cumulatively significant Extraordinary Circumstances occur when a normally excluded action may have a significant effect on: 12

13. Environmental Assessment (EA) CEQ § 1508.9 A proposed action requires an EA if: The proposed action is not eligible for a CE/CATEX The proposed action probably would not cause significant, adverse environmental effects Finding of No Significant Impact (FONSI) 13

14. Environmental Impact Statement CEQ § 1508.11 A proposed action requires an EIS if: The proposed action does not qualify for a CE/CATEX or FONSI The proposed action might cause significant, adverse environmental effects (degradation of the environment or significant threat or hazard to public health or safety) Might have substantial environmental controversy concerning the significance or nature of the environmental impact of the proposed action Record of Decision (ROD) 14

15. 3 Levels of Environmental Analysis and Documentation The main differences between an EA and EIS An EIS tends to be more complicated resulting in higher cost and a longer time commitment. An EA ends in a FONSI; an EIS ends in a ROD Generally, an EA has less public participation than an EIS. The burden of proof, in the case of a lawsuit is different between the two documents ~ an EA can be harder for an agency to defend. 15

16. NEPA 3 Primary Functions of NEPA Documents: Provide sufficient information to the decision-maker to make an informed decision Provide that procedural requirements of NEPA have been followed and completed Informs the interested public 16

17. Suggested Content of an EIS/EA CEQ § 1502.10 Recommended format. Cover sheet Summary Table of Contents Purpose of and need for action Alternatives including the proposed action Affected environment Environmental consequences List of preparers List of Agencies, Organizations, and persons to whom copies of the statement are sent Index Appendices 17

18. EA/EIS Steps Purpose and Need Identify Issues Develop Alternatives Evaluation Consequences Public Review/Comment Decision 18

19. Purpose and Need Who wants to do what, when, where Need – the why List project objectives Scope of analysis (influence of laws, regulations, other NEPA documents . . .) Summarize decision(s) to be made 19

20. Identify Issues - Scoping Conflicts, threats, opportunities Come from other government agencies, Native Americans, and othe r concerned citizens Federal agency’s analysis, literature, review and IDT meetings Purpose Determine actions Alternatives Impacts 20

21. Alternatives No action – no change from current situation Proposed action Include all reasonable alternatives – including those not considered in detail Explain why some alternatives not considered in detail Consider equally all alternatives considered in detail 21

22. Affected environment Physical: soil, air, water Biological: Plants, animal Social: infrastructure, population, health, quality of life, recreation Economic: income, employment, cost of project 22

23. Environmental Consequences Effects on physical, biological, social, economic environment Change from implementing each alternative (including no action) Beneficial and adverse Direct, indirect, cumulative 23

24. Environmental Consequences Direct – same time and place Indirect – distant in time or place or both Cumulative –past actions, proposed action(s) and reasonably foreseeable future actions 24

25. Mitigation Ways to eliminate, reduce, compensate for adverse effects Can be used to reduce impacts from significant to non significant Must be evaluated as part of an alternative Measures only required if part of the decision 25

26. Public Review and Decision Type of review depends on document EA – review then finding of no significant impact and decision or go to EIS EIS – review of draft EIS, final EIS released and decision (Record of Decision) 26

27. FONSI Finding of No Significant Impact – end of EA process If there are significant impacts – EIS required 27

28. Record of Decision EIS – Record of Decision 28

29. Implementation & Monitoring 3 categories of monitoring Implementation – did we do what we said we would do Effectiveness – are things happening as we predicted? Is our mitigation working as proposed? Validation – reviews the assumptions we made during our analysis – may involve intensive data analysis and research 29

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31. Summary & Review Categorical Exclusion (CE, CatEx), Environmental Assessment (EA), Environmental Impact Statement (EIS) Purpose & Need, Issues, Alternatives, Affected Environment, Environmental Consequences, Mitigation Public Review & Comment Decision – Finding of No Significant Impact (FONSI) or Record of Decision (ROD) Implementation & Monitoring 31

32. Questions/Comments 32