[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Notices]
[Pages 77492-77498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31983]
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COUNCIL ON ENVIRONMENTAL QUALITY
Draft Guidance on Improving the Process for Preparing Efficient
and Timely Environmental Reviews under the National Environmental
Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Notice of availability, draft guidance on improving the process
for preparing efficient and timely environmental reviews under the
National Environmental Policy Act.
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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
draft guidance on Improving the Process for Preparing Efficient and
Timely Environmental Reviews under the National Environmental Policy
Act for public review and comment. The National Environmental Policy
Act (NEPA) and CEQ Regulations implementing NEPA provide numerous
techniques for preparing efficient and timely environmental reviews.
CEQ is issuing this guidance for Federal departments and agencies to
emphasize and clarify these techniques, consistent with a thorough and
meaningful environmental review and keeping in mind the following basic
principles: (1) NEPA encourages simple, straightforward, and concise
reviews and documentation that are proportionate to and effectively
convey the relevant considerations in a timely manner to the public and
decisionmakers, while comprehensively addressing the issues presented;
(2) NEPA should be integrated into project planning rather than be an
after-the-fact add-on; (3) NEPA reviews should coordinate and take
appropriate advantage of existing documents and studies, including
through adoption and incorporation by reference; (4) Early and well-
defined scoping can assist in focusing environmental reviews on
[[Page 77493]]
appropriate issues that would be meaningful to a decision on the
proposed action; (5) Agencies are encouraged to develop meaningful and
expeditious timelines for environmental reviews; and (6) Agencies
should respond to comments in proportion to the scope and scale of the
environmental issues raised. This guidance applies to the preparation
of an Environmental Assessment (EA) or an Environmental Impact
Statement (EIS) consistent with legal precedent and agency NEPA
experience and practice. This guidance does not change or substitute
for any law, regulations, or any other legally binding requirement.
Rather, it provides CEQ's interpretation of existing regulations
promulgated under NEPA.
DATES: CEQ must receive comments on or before January 27, 2012.
ADDRESSES: The NEPA Draft Guidance is available at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa. Comments on
the NEPA Draft Guidance ``Improving the Process for Preparing Efficient
and Timely Environmental Reviews under the National Environmental
Policy Act'' should be submitted electronically at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa, or in
writing to The Council on Environmental Quality, ATTN: Horst Greczmiel,
Associate Director for National Environmental Policy Act Oversight, 722
Jackson Place NW., Washington, DC 20503.
FOR FURTHER INFORMATION, CONTACT: The Council on Environmental Quality
(Attn: Horst Greczmiel, Associate Director for National Environmental
Policy Act Oversight), 722 Jackson Place NW., Washington, DC 20503.
Telephone: (202) 395-5750.
SUPPLEMENTARY INFORMATION: Enacted in 1970, the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4370, is a fundamental tool used to
harmonize our environmental, economic, and social aspirations and is a
cornerstone of our Nation's efforts to protect the environment. NEPA
recognizes that many Federal activities affect the environment and
mandates that Federal agencies consider the environmental impacts of
their proposed actions before deciding to adopt proposals or take
action.\1\ Our ongoing review of the CEQ Regulations confirms the
benefits of integrating planning and environmental reviews,
coordinating multi-agency or multi-governmental reviews and approvals,
and setting clear schedules for preparing EAs and EISs. This guidance
promotes a sufficient and effective process that is tailored to avoid
excessive burden. This guidance also reflects CEQ's continuing
commitment to implement its Plan for Retrospective Review of Existing
Regulations (Plan) in accordance with Executive Order 13563.\2\
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\1\ A discussion of NEPA applicability is beyond the scope of
this guidance. For more information see CEQ, The Citizen's Guide to
the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
\2\ ``Improving Regulation and Regulatory Review,'' Exec. Order
13,563, 76 FR 3821 (January 21, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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The guidance addresses numerous individual issues associated with
the NEPA review process in a manner that meets the above-stated goals.
The individual issues addressed include the use of concise NEPA
documents focused on particular environmental issues, the integration
of NEPA into preliminary parts of the planning process, and a more
prevalent role of scoping in the development of NEPA reviews. The
guidance also advises agencies to collaborate with other government
bodies--including state, local, or Tribal--and coordinate reviews and
documents with other laws to allow for greater efficiency. It further
explains the adoption of other Federal agency reviews, the procedure
and ability to incorporate information contained in other documents
into a review, and the role of reasonable and proportionate responses
to comments within the NEPA process. Finally, the guidance proposes
agencies utilize appropriate time limits to promote efficiency. Thus,
this guidance offers concrete tools for each step of the NEPA review
process, providing, in sum, a more thorough, efficient, and informed
analysis of environmental issues.
This guidance provides CEQ's interpretation of existing regulations
promulgated under NEPA, and does not change agencies' fundamental
obligations with regard to NEPA and the CEQ Regulations. The draft
guidance document is provided below and is available at the Council on
Environmental Quality Web site at http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa.
For the reasons stated above, CEQ is seeking public comment on the
following draft guidance, entitled ``Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the National
Environmental Policy Act.''
The Draft Guidance: The National Environmental Policy Act (NEPA)
provides for a wide array of tools for the efficient and timely conduct
of environmental reviews. The Council on Environmental Quality (CEQ)
Regulations implementing NEPA contain a number of opportunities for
achieving this goal. CEQ is issuing this guidance for Federal
departments and agencies to emphasize and clarify those opportunities,
fully consistent with a thorough and meaningful environmental review.
The guidance also makes it clear that many of the provisions of the CEQ
Regulations which specifically refer to an Environmental Impact
Statement (EIS) can also apply to an Environmental Assessment (EA).
This guidance applies to the preparation of an EA or an EIS consistent
with legal precedent and agency NEPA experience and practice.
In conducting all environmental reviews pursuant to NEPA, agencies
should use the methods set out in the CEQ Regulations mindful of the
following basic principles:
NEPA encourages simple, straightforward, and concise
reviews and documentation that are proportionate to and effectively
convey the relevant considerations in a timely manner to the public and
decisionmakers while comprehensively addressing the issues presented;
NEPA should be integrated into project planning rather
than be an after-the-fact add-on;
NEPA reviews should coordinate and take appropriate
advantage of existing documents and studies, including through adoption
and incorporation by reference;
Early and well-defined scoping can assist in focusing
environmental reviews to appropriate issues that would be meaningful to
a decision on the proposed action;
Agencies are encouraged to develop meaningful and
expeditious timelines for environmental reviews; and
Agencies should respond to comments in proportion to the
scope and scale of the environmental issues raised.
This guidance also reflects CEQ's continuing commitment to
implement its Plan for Retrospective Review of Existing Regulations
(``Plan'') in accordance with Executive Order 13563.\3\ Our ongoing
review of the CEQ Regulations confirms the benefits of integrating
environmental reviews, coordinating multi-agency or multi-governmental
reviews and approvals, and setting clear schedules for preparing EAs
and EISs. This guidance promotes
[[Page 77494]]
a sufficient and effective process that is tailored to avoid excessive
burden. This guidance provides CEQ's interpretation of existing
regulations promulgated under NEPA, and does not change agencies'
obligations with regard to NEPA and the CEQ Regulations.\4\
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\3\ ``Improving Regulation and Regulatory Review,'' Exec. Order
13,563, 76 FR 3821 (January 21, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
\4\ This guidance is not a rule or regulation, and the
recommendations it contains may not apply to a particular situation
based upon the individual facts and circumstances. This guidance
does not change or substitute for any law, regulations, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory terminology such as ``guidance,'' ``recommend,''
``may,'' ``should,'' and ``can,'' is intended to describe CEQ
policies and recommendations. The use of mandatory terminology such
as ``shall,'' ``must,'' and ``required'' is intended to describe
controlling requirements under NEPA and the CEQ Regulations, but
this document does not establish legally binding requirements in and
of itself.
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Introduction and Steps to Date: CEQ was created by NEPA in 1970 and
is charged with overseeing NEPA implementation by Federal agencies. In
1978, CEQ issued the CEQ Regulations.\5\ From time to time, CEQ issues
guidance for the Federal agencies, to clarify the requirements and
applicability of various provisions of NEPA and the CEQ Regulations,
and to ensure that those requirements can be met in a timely and
effective fashion.\6\ These guidance documents represent CEQ's
interpretation of NEPA, which the U.S. Supreme Court has said is
``entitled to substantial deference.'' \7\
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\5\ 40 CFR parts 1500-1508 (The Council on Environmental Quality
(CEQ) Regulations for Implementing the Procedural Provisions of NEPA
(CEQ Regulations), available on http://www.nepa.gov at
ceq.hss.doe.gov/ceq_regulations/regulations.html).
\6\ These guidance documents are available online at
ceq.hss.doe.gov/ceq_regulations/guidance.
\7\ Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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NEPA requires Federal agencies to consider the potential
environmental consequences of their proposed action, and any reasonable
alternatives, before deciding whether and in what form to take an
action. Environmental reviews prepared under NEPA should provide a
decisionmaker with relevant and timely information, and the CEQ
Regulations make it clear that ``NEPA's purpose is not to generate
paperwork--even excellent paperwork--but to foster excellent action.''
\8\
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\8\ 40 CFR 1500.1(c).
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Complying with NEPA can take three forms, that of a Categorical
Exclusion, an Environmental Assessment, or an Environmental Impact
Statement:
Categorical Exclusion (CE): A CE is a category of actions
that is expected not to have individually or cumulatively significant
environmental impacts.\9\ Each agency's procedures for implementing
NEPA sets out that agency's CEs, which are established after CEQ and
public review. A proposed action within such a category is excluded
from further analysis and documentation in an Environmental Assessment
or an Environmental Impact Statement.\10\ A CE can be concluded with a
determination that a proposed action falls within one of the categories
of actions and there are no extraordinary circumstances indicating
further environmental review is warranted.
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\9\ Categorical Exclusions can also be created legislatively.
\10\ 40 CFR 1508.4, 1500.5(k).
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Environmental Assessment (EA): When a CE is not
appropriate and the agency has not determined whether the proposed
action will cause significant environmental effects, then an EA is
prepared. If, as a result of the EA, a Finding of No Significant Impact
(FONSI) is appropriate, then the NEPA review process is completed with
the FONSI, including documentation of its basis in the EA; otherwise an
Environmental Impact Statement is prepared.\11\
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\11\ 40 CFR 1508.9.
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Environmental Impact Statement (EIS): The most intensive
level of analysis is the Environmental Impact Statement, which is
typically reserved for the analysis of proposed actions that are
expected to result in significant environmental impacts. When an EIS is
prepared, the NEPA review process is concluded when a record of
decision (ROD) is issued.\12\
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\12\ 40 CFR 1505.2.
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CEQ has been working with agencies to modernize and reinvigorate
NEPA implementation in several ways. CEQ issued guidance on the
development and use of Categorical Exclusions in November 2010.\13\
Properly developed and applied, Categorical Exclusions provide an
efficient tool to complete the NEPA environmental review process for
proposals that normally do not require a more resource-intensive EA or
EIS. The use of Categorical Exclusions can reduce paperwork and delay
for proposed actions that do not raise the potential for significant
environmental effects.\14\ In January 2011, CEQ provided guidance that
specifically addressed the appropriate use of a FONSI to conclude the
NEPA review process relying on an EA. A mitigated FONSI is appropriate
when mitigation is used to avoid or lessen potentially significant
environmental effects of proposed actions that would otherwise need to
be analyzed in an EIS.\15\ In addition, in May 2010, CEQ issued
guidance on ensuring efficient and expeditious compliance with NEPA
when agencies must take exigent action to protect human health or
safety and valued resources in a timeframe that does not allow
sufficient time for the normal NEPA process.\16\
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\13\ CEQ Memorandum, ``Establishing, Applying, and Revising
Categorical Exclusions under the National Environmental Policy
Act,'' November 23, 2010, available at ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
\14\ 40 CFR 1500.4(p) (recommending use of categorical
exclusions as a tool to reduce paperwork), 1500.5(k) (recommending
categorical exclusions as a tool to reduce delay).
\15\ CEQ Memorandum, ``Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of Mitigated Findings
of No Significant Impact,'' January 14, 2011, available at
http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\16\ CEQ Memorandum, ``Emergencies and the National
Environmental Policy Act,'' May 12, 2010, available at
ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
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In August 2011 the President called for further steps to enhance
the efficient and effective permitting and environmental review of
infrastructure development ``through such strategies as integrating
planning and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear
schedules for completing steps in the environmental review and
permitting process; and utilizing information technologies to inform
the public about the progress of environmental reviews as well as the
progress of Federal permitting and review processes.''\17\ This
guidance sets forth straightforward ways by which the CEQ Regulations,
properly understood and applied, support these strategies.
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\17\ Presidential Memorandum, ``Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review'' August 31, 2011, available at http://www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more.
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1. Concise NEPA Documents: Agencies are encouraged to concentrate
on environmental analysis in their EAs and EISs, not to produce an
encyclopedia of all applicable information.\18\ Environmental analysis
should focus on significant issues, discussing insignificant issues
only briefly.\19\ Impacts should be discussed in proportion to their
significance, and if the issues are not deemed significant there should
be only enough discussion to show why more study is not warranted.\20\
Scoping,\21\ incorporation by reference,\22\ and integration of other
[[Page 77495]]
environmental analyses \23\ are additional methods that may be used to
avoid redundant or repetitive discussion of issues.\24\
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\18\ 40 CFR 1500.4(b), 1502.2(b).
\19\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a)
(``Environmental impact statements shall be analytic rather than
encyclopedic.'').
\20\ 40 CFR 1502.2(b).
\21\ 40 CFR 1500.4(g).
\22\ 40 CFR 1500.4(j).
\23\ 40 CFR 1500.4(k).
\24\ See generally 40 CFR 1502.2 (EISs should be written in
plain language so that decisionmakers and the public can understand
them).
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All NEPA environmental documents, not just EISs, should be written
in plain language,\25\ follow a clear format, and emphasize important
portions of the impact analysis over mere background material. Clarity
and consistency ensure that the substance of the agency's analysis is
understood clearly, avoiding unnecessary confusion or risk of
litigation that could result from an ambiguous or opaque analysis. The
CEQ Regulations indicate that the text of a final EIS that addresses
the purpose and need, alternatives, affected environment, and
environmental consequences should normally be less than 150 pages and a
final EIS for proposals of unusual scope or complexity should normally
be less than 300 pages.\26\
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\25\ 40 CFR 1502.8.
\26\ 40 CFR 1502.7.
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In light of the growth of environmental requirements since the
publication of the CEQ Regulations, and the desire to use the EIS to
address, via integration, those requirements, it is recognized that
there will be a range of appropriate lengths of EISs. Nevertheless,
agencies should keep EISs as concise as possible (continuing to
relegate relevant studies and technical analyses to appendices) and no
longer than necessary to comply with NEPA and the other legal and
regulatory requirements being addressed in the EIS, and to provide
decision makers and the public with the information they need to assess
the significant environmental effects of the action under review.
Length should vary with the number, complexity and significance of
potential environmental problems.\27\
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\27\ 40 CFR 1502.2(c) (length should vary first with potential
environmental problems and then with project size).
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Similarly, the CEQ guidance issued in 1981 indicated that 10-15
pages is generally appropriate for EAs.\28\ This guidance must be
balanced with the requirement to take a hard look at the impacts of the
proposed action. As with EISs, an EA's length should vary with the
scope and scale of potential environmental problems, rather than just
with the scope and scale of the proposed action.\29\ The EA should be
no more elaborate than necessary to fulfill the functions and goals set
out in the CEQ Regulations: (1) Briefly provide sufficient evidence and
analysis for determining whether to prepare an EIS; (2) aid an agency's
compliance with NEPA when no EIS is necessary, i.e., the EA helps to
identify and analyze better alternatives and mitigation measures; and
(3) facilitate preparation of an EIS when one is necessary.\30\
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\28\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations''
(Question and Answer 36a), March 16, 1981, available at http://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36. Note that at the time of
this memorandum CEQ was of the opinion that mitigated Findings of No
Significant Impact were only appropriate if the mitigation measures
were imposed by statute or regulation, or submitted by an applicant
or agency as part of the original proposal (Question & Answer 40).
CEQ has since published guidance accepting mitigated FONSIs as
another means of efficiently concluding the NEPA process without
producing an EIS (``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact,'' November 23, 2010, available at http://
http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\29\ 40 CFR 1508.9 (The EA is ``a concise public document''); 40
CFR 1502.2(c) (interpreting the conciseness requirement for an EIS
to mean that ``length should vary first with potential environmental
problems and then with project size'').
\30\ 40 CFR 1508.9(a).
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2. Early NEPA Integration in Planning: An agency should first
consider integrating the NEPA process into planning when it structures
its internal process for developing a proposed policy, program,
management plan, or project. Agencies must integrate the NEPA process
into their planning at the earliest possible time to ensure that
planning and decisions reflect environmental values, avoid delays later
in the process, and anticipate and attempt to resolve potential
issues.\31\ NEPA should not become an after-the-fact process that
justifies decisions that have entirely, or in large part, already been
made.\32\
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\31\ 40 CFR 1501.2.
\32\ 40 CFR 1502.2(g).
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The CEQ Regulations emphasize early NEPA planning in the context of
an EIS. The scoping process can be used before a notice of intent to
seek useful information on a proposal from agencies and the public.\33\
For example, agencies can commence the process to prepare an EIS during
the early stages of development of a proposal, to ensure that the
environmental analysis can be completed in time for the agency to
consider the final EIS before making a decision on the proposal.\34\
Further, an agency shall prepare an EIS so that it can inform the
decisionmaking process in a timely manner ``and will not be used to
rationalize or justify decisions already made.''\35\
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\33\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations''
(Question and Answer 13), March 16, 1981 available at
ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13.
\34\ 40 CFR 1508.23 (A proposal exists as soon as an agency has
a goal, is developing one or more alternatives to achieve that goal,
and the effects can be meaningfully evaluated).
\35\ 40 CFR 1502.5. For guidelines specific to different agency
activities, see 40 CFR 1502.5(a)--(d). Misuse of the NEPA process to
justify decisions already made is counterproductive and can result
in litigation that could delay and ultimately prevent a proposed
action from proceeding.
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If agencies are to prepare efficient EAs, then they should adhere
to these same principles and ensure that the EA is prepared in
conjunction with the development of the proposed action, and in time to
inform the public and the decisionmaker. Agencies should review their
NEPA implementing procedures as well as their NEPA practices to ensure
that NEPA is integrated into overall project management to the fullest
extent possible whether the agencies are preparing an EA or an EIS.
The CEQ Regulations call upon agencies to provide for situations
where the initial planning process is in the hands of an applicant or
other non-Federal entity.\36\ The Regulations require Federal agencies
to address these situations in their NEPA implementing procedures.\37\
Consequently, agencies that have a reasonably foreseeable role in
actions that are initially developed by private applicants or other
non-Federal entities must plan for those situations. The NEPA
implementing procedures for such agencies must provide access to
designated staff or the policies that can inform applicants and other
non-Federal
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entities of studies or other information foreseeably required for later
Federal action.\38\
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\36\ 40 CFR 1501.2(d) (non-Federal entities plan activities
prior to Federal involvement that trigger NEPA requirements).
\37\ 40 CFR 1507.3(b)(1). All agencies are required to adopt
procedures that supplement the CEQ Regulations and provide NEPA
implementing guidance that both provides agency personnel with
additional, more specific direction for implementing the procedural
provisions of NEPA and informs the public and State and local
officials of how the CEQ Regulations will be implemented in agency
decisionmaking. Agency procedures should therefore provide Federal
personnel with the direction they need to implement NEPA on a day-
to-day basis. The procedures must also provide a clear and
uncomplicated picture of what those outside the Federal government
may do to become involved in the environmental review process under
NEPA. See CEQ Memorandum, ``Agency Implementing Procedures Under
CEQ's NEPA Regulations,'' January 19, 1979 available at
ceq.hss.doe.gov/nepa/regs/exec11979.html. Some examples of agency
NEPA implementing procedures are the Department of the Interior
Department Manual, National Park Service, ``Managing the NEPA
Process,'' May 27, 2004, available at http://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior
Department Manual, Bureau of Land Management, ``Managing the NEPA
Process,'' May 8, 2008, available at http://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
\38\ 40 CFR 1501.2(d)(1).
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Advanced planning for initially non-Federal actions must also
ensure that the Federal agency is able to initiate early consultation
with appropriate Tribes, States, local agencies, and interested private
persons and organizations when Federal involvement is reasonably
foreseeable.\39\ For actions initiated at the request of a non-Federal
entity, Federal agencies should begin the NEPA process for preparing
their EA or EIS as early as possible but no later than upon receipt of
a complete application.\40\ Federal agencies should, whenever possible,
guide applicants to gather and develop the appropriate level of
information and analyses in advance of submitting an application or
other request for federal agency action. For example, several agencies
require an applicant to prepare and submit an environmental report to
help prepare the NEPA analyses and documentation and facilitate the
lead agency's independent environmental review of the proposal.
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\39\ 40 CFR 1501.2(d)(2). Agencies should be cognizant of their
obligations under current Executive Orders 13175 (Consultation and
Coordination with Indian Tribal Governments, Nov 6, 2000) and 112898
(Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, Feb 11, 1994), available at
ceq.hss.doe.gov/laws_and_executive_orders/executive_orders.html.
\40\ 40 CFR 1501.2(d)(3).
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3. Scoping: To effectuate integration, avoid duplication, and focus
the NEPA review, the CEQ Regulations provide for ``scoping.'' \41\ In
scoping, the lead agency determines the issues that its EA or EIS will
address and identifies the significant issues related to the proposed
action that will be considered in the analysis.\42\ To increase
efficiency, the lead agency can solicit cooperation at the earliest
possible time from other agencies that have jurisdiction by law or
special expertise on any environmental issue that should be considered.
Cooperating agencies with jurisdiction by law or special expertise can
work with the lead agency to ensure that, whenever possible, one NEPA
review process informs all the decisions needed to determine whether
and, if so, how a proposed action will proceed.\43\
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\41\ 40 CFR 1501.7 (``There shall be an early and open process
for determining the scope of issues to be addressed and for
identifying the significant issues related to a proposed action.
This process shall be termed scoping.'')
\42\ 40 CFR 1500.4(b), (g) and 1501.7.
\43\ 40 CFR 1501.6, 1508.5 (responsibilities of the lead agency
include the requirement to request the participation of any other
Federal agency which has jurisdiction by law). Previous guidance on
engaging other agencies with jurisdiction over permits and other
approvals required for a proposal to proceed include: CEQ Memorandum
for Heads of Federal Agencies, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act'' (January 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; and CEQ Memorandum to Agencies,
``Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations'' (Question and Answer 14), March 16, 1981
available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14.
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The CEQ Regulations explicitly address the role of scoping in
preparation of an EIS. Agencies can also choose to take advantage of
scoping when preparing an EA that deals with uncertainty or controversy
regarding potential conflicts over the use of resources or the
environmental effects of the proposed action. For example, a lead
agency preparing such an EA may use scoping to identify and eliminate
from detailed study the issues that are not significant or that have
been covered by prior environmental review.\44\ The scoping process
provides a transparent way to identify significant environmental issues
and to deemphasize insignificant issues,\45\ thereby focusing the
analysis on the most pertinent issues and impacts.\46\
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\44\ 40 CFR 1501.7(a)(3).
\45\ 40 CFR 1500.4(g).
\46\ 40 CFR 1501.4(b) (agencies are to involve the public in the
preparation of EAs; the manner in which they do so is left to the
agency).
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The scoping process can be particularly helpful in identifying
opportunities to coordinate reviews and related surveys and studies
required by other laws or by executive orders. Scoping should also be
used to begin inter- and intra-governmental coordination if it is not
already ongoing. To accomplish these goals, the lead agency preparing
an EA or an EIS can choose to invite the participation of affected
Federal, State, and local agencies, any affected Indian tribe, the
proponent of the action, and ``other interested persons (including
those who might not be in accord with the action on environmental
grounds).'' \47\ In addition to facilitating coordination and the
development of required environmental reviews, scoping will help to
identify the universe of matters that need to be addressed with
particular care and flag issues for thorough consideration, thereby
defusing potential conflict that, absent early attention, could arise
later and potentially delay the timely completion of the relevant NEPA
review.\48\
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\47\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing
cooperating agency status is discussed in greater detail in the CEQ
Memorandum for Heads of Federal Agencies, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act,'' 30 January 2002 available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\48\ In cases where a Federal agency uses scoping for an EA and
subsequently determines it is necessary to conduct an EIS, the
agency should refer to the guidance provided in the CEQ Memorandum
to Agencies, ``Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations'' (Question and Answer 13),
March 16, 1981, available at http://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (scoping that is done before the assessment, and in aid of
its preparation, cannot substitute for the normal scoping process
after publication of the NOI, unless the earlier public notice
stated clearly that this possibility was under consideration, and
the NOI expressly provides that written comments on the scope of
alternatives and impacts will still be considered).
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In sum, the scoping process provides an early opportunity to plan
collaboration with other governments,\49\ assign responsibilities,\50\
and develop the planning and decisionmaking schedule.\51\ It also
affords lead agencies the option of setting page limits for
environmental documents and setting time limits for the steps in the
NEPA process.\52\ Agencies may also choose to use scoping whenever any
of these techniques can provide for the more effective and efficient
preparation of an EA.
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\49\ 40 CFR 1501.6 and 1508.5. CEQ has published guidance
encouraging lead agencies to establish a formal cooperating agency
relationship with other Federal agencies as well as State, Tribal,
and local governmental entities. CEQ memorandum, ``Cooperating
Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act,'' January 30, 2002, available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\50\ 40 CFR 1501.7(a)(4) (a lead agency may allocate
responsibility for EIS preparation and analysis among cooperating
agencies during scoping).
\51\ 40 CFR 1501.7(a)(7).
\52\ 40 CFR 1501.7(b)(1)-(2), 1501.8.
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4. Inter-Governmental Coordination (State, Local, or Tribal
Environmental Reviews): CEQ encourages Federal agencies to collaborate
with Tribal, State, and local governments to the fullest extent
possible to reduce duplication, unless the agencies are specifically
barred from doing so by some other law.\53\ The CEQ Regulations
explicitly provide for agencies to conduct joint planning processes,
joint environmental research and studies, joint public hearings (except
where otherwise provided by statute), and joint environmental
assessments.\54\ Federal agencies should explore every reasonable
opportunity to integrate the requirements of NEPA with the external
planning and environmental reviews required on the Federal as well as
the State, Tribal, and local levels of
[[Page 77497]]
government so that those reviews can run concurrently rather than
consecutively.\55\
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\53\ 40 CFR 1506.2(b).
\54\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging
Federal agencies to eliminate duplication with State and local
procedures, by providing for joint preparation).
\55\ 40 CFR 1500.2(c). This point is reiterated throughout the
CEQ Regulations.
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Where State law or local ordinances contain environmental impact
analysis and documentation requirements in addition to, but not in
conflict with, those in NEPA, the CEQ Regulations provide authority for
producing joint EISs.\56\ In such cases, Federal agencies shall
cooperate in fulfilling the State, Tribal, and local environmental
impact analysis and documentation requirements as well as the
requirements of other environmental laws so that one document will
suffice for complying with as many applicable laws as practicable.
Federal agencies should seek efficiencies and avoid delay by attempting
to meet applicable non-Federal NEPA-like requirements in conjunction
with either an EA or an EIS wherever possible.
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\56\ 40 CFR 1506.2(c).
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The CEQ Regulations also require that a Federal agency preparing an
EIS better integrate the EIS into non-Federal planning processes by
discussing and explaining any inconsistency of a proposed Federal
action with any approved State or local plan and laws.\57\ When
preparing an EA or EIS, if an inconsistency with any approved Tribal,
State, or local plan or laws exists, the Federal agency should describe
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\58\
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\57\ 40 CFR 1506.2(d).
\58\ 40 CFR 1506.2(d).
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5. Coordinating Reviews and Documents Under Other Applicable Laws:
Agencies must integrate, to the fullest extent possible, their draft
EIS with environmental impact analyses and related surveys and studies
required by other laws or by executive order.\59\ Coordinated and
concurrent environmental reviews are appropriate whenever other
analyses, surveys, and studies will consider the same issues and
information as a NEPA analysis. Such coordination should be considered
when preparing an EA as well as when preparing an EIS.
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\59\ 40 CFR 1502.25(a). Examples provided in the Regulation are:
the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the
National Historic Preservation Act (16 U.S.C. 470 et seq.); and the
Endangered Species Act (16 U.S.C. 1531 et seq.).
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The goal should be to conduct concurrent rather than sequential
processes whenever appropriate. In situations where one aspect of a
project is within the particular expertise or jurisdiction of another
agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more
efficient.
A coordinated or concurrent process may provide a better basis for
informed decision making, or at least achieve the same result as
separate or consecutive processes while avoiding unnecessary
duplication of effort. In addition to integrating the reviews and
analyses, the CEQ Regulations also state that any environmental
document that complies with NEPA may be combined with any other agency
document to reduce duplication and paperwork.\60\
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\60\ 40 CFR 1506.4; see also 40 CFR 1500.4(k), (n).
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6. Adoption: The adoption of one Federal agency's EIS, or a portion
of that EIS, by another Federal agency is an efficiency that the CEQ
Regulations provide.\61\ An agency preparing an EA should similarly
consider adopting another agency's EA when the EA or a portion thereof
addresses the proposed action and meets the standards for an adequate
EA under NEPA, the CEQ's Regulations, and the adopting agency's NEPA
implementing procedures.
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\61\ 40 CFR 1506.3.
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The CEQ Regulations require agencies to involve agencies,
applicants and the public; however, they do not require agencies to
prepare a draft EA and circulate a draft or final EA for public review
or comment.\62\ If an agency's implementing NEPA procedures establish
requirements for public review and comment when preparing an EA,
however, then the adopting agency must provide a similar process when
it adopts the preparing agency's EA.
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\62\ 40 CFR 1501.4(b) and 1506.6 (Agencies are to involve the
public in the preparation of EAs, the manner in which they do so is
left to the agency).
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In those cases where the adopting agency is also a cooperating
agency in the preparation of an EIS, it may adopt the lead agency's EIS
without additional public involvement when, after an independent
review, it concludes that the lead agency has adequately addressed the
adopting agency's comments and suggestions.\63\ Similarly, when the
adopting agency was a cooperating agency in the preparation of an EA,
it may adopt the EA without additional public involvement.
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\63\ 40 CFR 1506.3(c).
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7. Incorporation by Reference: Incorporation by reference is
another method that provides efficiency and timesaving when preparing
either an EA or an EIS. The CEQ Regulations direct agencies to
incorporate material into an EIS by reference to reduce the size of the
EIS and avoid duplicative effort.\64\ An agency must cite the
incorporated material in an EIS and briefly describe the content.\65\
An agency may not incorporate any material by reference in an EIS
unless the material is reasonably available for inspection by
potentially interested persons within the time allowed for comment.\66\
Agencies can, consistent with NEPA and the CEQ Regulations, incorporate
documents into an EA by reference provided the content has been briefly
described and the materials are reasonably available for review by
interested parties.
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\64\ 40 CFR 1502.21.
\65\ 40 CFR 1502.21.
\66\ 40 CFR 1502.21 (material based on proprietary data which is
itself not available for review and comment cannot be incorporated
by reference).
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8. Expediting Responses to Comments: Agencies should provide a
reasonable and proportionate response to comments on a draft EIS by
focusing on the environmental issues and information conveyed by the
comments. When preparing a final EIS, if the draft EIS complies with
NEPA, CEQ regulations, and agency implementing procedures, the agency
may use the draft EIS as the final EIS under certain conditions. If
changes in response to comments are minor and are limited to factual
corrections and/or explanations of why the comments do not warrant
further agency response, agencies may write them on errata sheets and
attach them to the statement instead of rewriting the draft
statement.\67\ In such cases, the agency must circulate only the
comments, the responses and the changes, and not the final
statement.\68\ Only the comments, responses, and changes need be filed
with the draft document and a new cover sheet to make the EIS final,
under those circumstances.\69\ Similarly, if an agency issues an EA for
comment and the changes in response to comments are minor and limited
to factual corrections and/or explanations of why the comments do not
warrant further agency response, then the agency may prepare a similar
cover and errata sheet and use its draft EA as the final EA.
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\67\ 40 CFR 1503.4(c); see also 40 CFR 1500.4(m).
\68\ 40 CFR 1503.4(c).
\69\ 40 CFR 1503.4(c).
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9. Clear Time Lines for NEPA Reviews: Establishing appropriate time
limits promotes the efficiency of the NEPA process.\70\ The CEQ
Regulations do not prescribe universal time limits for the entire NEPA
process; instead they set certain minimum time limits for the various
portions of the NEPA process.\71\ The CEQ Regulations do
[[Page 77498]]
encourage Federal agencies to set appropriate time limits for
individual actions, however, and provide a list of factors to consider
in establishing timelines.\72\ Those factors include: the potential for
environmental harm; the size of the proposed action; other time limits
imposed on the action by other laws, regulations, or executive orders;
and the degree of public need for the proposed action and the
consequences of delay. The CEQ Regulations refer to the EIS process
when describing the ``constituent parts of the NEPA process'' to which
time limits may apply, require agencies to set time limits at the
request of an applicant, and allow agencies to set time limits at the
request of other interested parties.\73\ It is entirely consistent with
the purposes and goals of NEPA and with the CEQ Regulations for
agencies to also determine appropriate time limits for the EA process
when requested by applicants, Tribes, States, local agencies, or
members of the public.
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\70\ 40 CFR 1500.5(e).
\71\ 40 CFR 1506.10 (setting 90 day time period between EPA
publication of the notice of availability of a draft EIS and the
Record of Decision, 30 day time period between EPA publication of
the notice of availability of a final EIS and the Record of
Decision, and 45 days for comment on a draft EIS).
\72\ 40 CFR 1501.8 (CEQ encourages Federal agencies to set time
limits consistent with the time intervals required by Sec.
1506.10).
\73\ 40 CFR 1501.8(a) and (c).
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Conclusion: This guidance describes methods provided in the CEQ
regulations that agencies preparing an EA or an EIS may employ to
prepare concise and timely NEPA reviews. Using methods such as
integrating planning and environmental reviews and permitting,
coordinating multi-agency or multi-governmental reviews and approvals,
and setting schedules for completing the environmental review will
assist agencies in preparing efficient and timely EAs and EISs
consistent with legal precedent and agency NEPA experience and
practice.
Nancy H. Sutley,
Chair.
[FR Doc. 2011-31983 Filed 12-12-11; 8:45 am]
BILLING CODE 3225-F2-P