National Environmental Policy Act (NEPA) Writing Environmental Assessments (EAs), Part 1 of 3 - Helen Clough and Judy Kurtzman

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

Writing clear Environmental Assessments (EAs) as required by the National Environmental Policy Act (NEPA) is critical to successful implementation of the law and more importantly good decisions. The NEPA process must be well documented in clear language so that the proposals, alternatives and the environmental effects of proposals and alternatives are clearing explained. Often the NEPA analysis is not well documented resulting in costly delays in projects as appeals and litigation occur regarding the NEPA analysis. This training will focus on how to properly document the NEPA analysis for EAs with emphasis and examples relevant to rivers and river management.

This first part of the 3-part training will review NEPA and the types of NEPA documentation. The session will focus on scoping, public involvement, and defining the purpose and need for action. The session will include exercises and review of relevant documents. Ample time is allotted for discussion and questions from participants. The session will be followed up by Parts 2 and 3 covering the rest of the EA process.

1. NEPA – Writing Environmental Assessments, Part 1 River Management Society Denver, Colorado April 15, 2014 1

2. History Events of the 1940s, 1950s, and 1960s that paved the way for the passage of the National Environmental Policy Act Passed by Congress December 23, 1969 Signed by Richard Nixon January 1, 1970 2

3. NEPA Prevent/eliminate damage to environment Create/maintain harmony between people & environment Understand ecological systems & natural resources Established Council on Environmental Quality (CEQ) 3

4. Basic Mandates of NEPA Consider the environment in your decisions I mprove the environment Protect the environment Document impacts Productive harmony Public involvement 4

5. Implementation Law CEQ Regulations Agency regulations Agency policies Agency handbooks Regional/local procedures 5

6. Other legal considerations Clean Air Act Clean Water Act Endangered Species Act National Historic Preservation Act Archeological Resources Protection Act Executive Orders 11988, 11990, 12898, and 13045 6

7. Hard Look Doctrine Assumptions spelled out Inconsistencies explained Methodologies disclosed Contradictory evidence rebutted Records referenced solidly grounded in science Guesswork eliminated Conclusions supported in a manner capable of judicial understanding 7

8. Major federal actions New and continuing: Activities Funding Permits Categories: Plans Policies Programs Projects 8

9. Significance Context: Society as a whole Regional Local Intensity: Severity of impacts Degree of controversy Uncertainty of impacts Cumulative impacts Cultural resources, endangered species, wild rivers, etc. 9

10. 10

11. NEPA is a cyclical process Develop a proposal with specific objectives identify the environmental issues and other decision-making factors Develop alternatives that meet objectives and address issues Establish methodologies for analyzing projected effects Evaluate the action alternatives against the criteria and the no-action alternative Select the alternative that best meets the objectives and satisfies criteria Document and implement the decision and monitor performance Monitor and evaluate decisions, actions, and directions 11

12. NEPA Documents 3 Primary NEPA Documents: Categorical Exclusions (CEs or CATEXs) Environmental Assessments (EAs) Environmental Impact Statements (EISs) 12

13. Categorical Exclusions (CE, CATEX) A proposed action qualifies for a 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 CATEXs in their published NEPA Regulations. 13

14. Environmental Assessment (EA) Not eligible for a categorical exclusion The proposed action probably would not cause significant, adverse environmental effects Finding of No Significant Effect (FONSI) 14

15. Environmental Impact Statement (EIS) Proposed action does not qualify for categorical exclusion or Finding of No Significant Impact Proposed action might cause significant adverse effects to the environment Might have substantial environmental controversy or significance or nature of the environmental effects of the proposed action Record of Decision (ROD) 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 Inform the interested public 16

17. Interdisciplinary Teams The interdisciplinary team consists of: Leader Core team members Extended team members 17

18. Reducing Paperwork Tiering Incorporating by reference Adoption 18

19. Suggested Content of an EA 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 document are sent Appendices 19

20. Defining Your Problem (Need) Traps People are convinced that they know what is supposed to be done, so they don’t think there is any reason to take time clarifying the problem. 20

21. Defining Your Problem (Need) Traps People mistake symptoms for causes. 21

22. Chapter 1 Purpose and Need Purpose and Need for the Action Explain who wants to do what and where and when they want to do it (background). Agency versus applicant Describe the need for the action (i.e., Why this action is important). If the need is related to your agency’s mandates give the source. Lists the project’s purpose (goals or objectives ). What does the agency hope to achieve and how will it be measured (quantify). Selection criteria for reasonable alternatives. 22

23. Chapter 1 Purpose and Need Identifies the laws, regulations, or other EISs/EAs that influence the scope of this EIS/EA. Include a list of Federal, state, or local permits, licenses, or other consultation requirements. Summarizes the decision(s) to be made. Summarizes the scoping/public involvement process, and lists the relevant issues/resources to be analyzed and those dismissed from further analysis. 23

24. Chapter 1 Purpose and Need Compare the desired condition against the existing condition and ask yourself: What is the disparity between them? Is there a need for change? Should an action be taken? If so, what types of action(s) would help in the solving the problem(s) between desired conditions and existing conditions? 24

25. Chapter 1 Purpose and Need Problem Framing—What is the Problem? You don’t want to define the problem too widely You don’t want to define the problem too narrowly 25

26. Exercise 1 Review EA ~ Chapter 1 Discuss as a group the strengths and weaknesses of the purpose and need statement for the project: Who was proposing what, where, and when Why the action was being proposed/the need List of objectives with measurable outputs Other relevant laws, policies and documents and any potential Federal, State and/or local consultation requirements Summary of decisions to be made Summary of scoping: who was contacted, what were the relevant issues identified 26

27. Scoping and Public Involvement Scope Scoping Public Involvement Public includes all groups or individuals outside your agency Organize all information/comments received from the public in your administrative file Respond to all comments in your document 27

28. Scoping and Public Involvement Identify and talk with all Federal, State, local agencies, and other affected/interested public Consult with Indian Tribes – government to government consultation Identify and talk within your agency – leadership; other divisions Identify all mandatory review and consultation requirements Identify all NEPA and related documents that already address any aspect or are related to the proposal 28

29. Scoping and Public Involvement Identify all relevant issues/resources to be analyzed in-depth and eliminate issues not relevant Define the scope of the environmental analysis in terms of actions, impacts, and alternatives Describe the actions of the Alternatives ~ No Action and all action Alternatives 29

30. Scoping and Public Involvement Considerations for Public Involvement: Who will be interested in or affected by the action? Who has the information and expertise needed for the analysis? What information do you need from each person, agency, or organization on your list? How do you involve the public so you can get the information you need, inform them of what you are doing, and solicit their input? At what point in the NEPA process do you ask for the information? Public involvement needs to be early, frequent, representative, and taken seriously 30

31. Response to Comments Develop a procedure for handling comments Appoint someone on the team to screen all comments for substantive points Keep a clean copy of all comments and letters received Consolidate duplicate comments Always respond with substance - no matter how far out you may feel the comment is 31

32. Exercise 2 Review the scoping letter - identify key points that you should include in your analysis 32

33. . . . After careful review, we have the following requests of the Controlling Agencies: An established noxious weed control plan needs to be implemented and monitored for effectiveness on a regular basis. Spring Hollow, the Teton Dam Site, and the Felt Power Plant Access currently need physical improvements, in addition, is the need for ongoing maintenance to insure safe and efficient public access. If public improvements are needed in and around the Teton River Canyon, and these improvements require access/usage via Teton Country Roads, we ask that our office be both notified and included in the planning process. 33

34. Summary & Review Basic mandates Procedural requirements Significance Documents Interdisciplinary teams Reducing paperwork Purpose and need Scoping and public involvement 34

35. Questions/Comments?? 35