[Federal Register Volume 80, Number 86 (Tuesday, May 5, 2015)]
[Notices]
[Pages 25680-25691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10439]


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GULF COAST ECOSYSTEM RESTORATION COUNCIL

[Docket No. 105XX2015-1111-03]


National Environmental Policy Act Implementing Procedures and 
Categorical Exclusions

AGENCY: Gulf Coast Ecosystem Restoration Council.

ACTION: Issuance of final procedures.

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SUMMARY: The Gulf Coast Ecosystem Restoration Council (Council) is 
hereby issuing final procedures for implementing the National 
Environmental Policy Act (NEPA). These procedures include categorical 
exclusions (CEs) of actions the Council has determined do not 
individually or cumulatively have a significant effect on the human 
environment and, thus, are categorically excluded from the requirement 
to prepare an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS) under NEPA.

DATES: Effective Date: June 4, 2015.

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, administered by the Department of the 
Treasury, 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 
final two components, a National Oceanic and Atmospheric Administration 
RESTORE Act Science Program and a Department of the Treasury 
administered Centers of Excellence Research Grants Program.

II. These Procedures

    These procedures 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 the 
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 below NEPA procedures 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 
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 preparation of new NEPA documentation, adoption of 
existing NEPA documentation, or application of a CE, 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

[[Page 25681]]

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 prior to making its 
decision.
    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 EISs 
as well as an opportunity to review and comment on draft EISs. Under 
some circumstances, as detailed in the NEPA procedures, the public 
would also have an opportunity to review and comment on draft 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. In some cases, 
projects and programs nominated for inclusion in the FPL may 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. Response to Public Comments and Other Changes to Procedures

    On January 16, 2015, the Council published draft NEPA procedures in 
the Federal Register for a 30-day public review and comment period (80 
FR 2381). The Council received one comment letter, representing the 
combined comments of five organizations, on the draft NEPA procedures. 
The recommendations contained in that comment letter are summarized 
below, along with the Council's responses to the recommendations.
    The commenter recommended the Council ensure that the alternatives 
analysis for projects and programs is robust and complete. The Council 
agrees that the analysis of alternatives is an essential component of 
the NEPA process. Consistent with CEQ regulations, the Council will 
ensure the rigor of the alternatives analysis for a project or program 
that requires evaluation in an EA or EIS is appropriate relative to the 
scope and magnitude of the activity being considered. As this is a 
policy-level recommendation, no change was made to the procedures in 
response to this comment.
    The commenter recommended that the applicability and 
appropriateness of Council use of a member CE should be included in 
decision documents that are publically available. In response, the 
Council will inform the public when it uses a member CE in association 
with the approval of funding for a project or program under the 
Council-Selected Restoration Component. The Council will provide the 
public with the specific CE being used, along with the Council's 
findings regarding the review of potential extraordinary circumstances. 
Subsection 4(f) of the procedures has been modified to clarify that 
such information will be made available to the public on the Council's 
Web site.
    The commenter recommended that the Council provide a list of member 
agencies' potentially applicable CEs on the Council's Web site or 
provide links to the federal agency Web sites where those CEs can be 
found. In response, the Council will provide and endeavor to maintain 
links to member agencies' CEs on its Web site. It should be noted, 
however, that the potential applicability of a member CE to a Council 
action would be determined on a case-by-case basis. By providing links 
to the member agencies' CEs, the Council is not necessarily indicating 
its intent to use any of the subject CEs. That is a determination that 
would be made based on the specific details of the activity to which 
the CE might be applied. No change was made to the procedures in 
response to this comment.
    The commenter recommended that the Council change the word ``may'' 
to ``must'' in Section 15(b). The Council will advise each recipient of 
Council-Selected Restoration Component funds of the recipient's 
obligations to address any and all environmental laws that might be 
applicable to implementation of a given project or program but that are 
not necessarily applicable to the Council's approval of funding for the 
activity. As discussed in the procedures, the Council will also 
endeavor to concurrently address all environmental requirements 
applicable to a proposed project or program, to the extent feasible and 
appropriate. However, there may be instances where it would be 
appropriate for the Council to issue a Record of Decision that approves 
funding for a project or program pending completion

[[Page 25682]]

of all permits and approvals. For this reason, the Council has chosen 
to retain the discretion provided in the original language for this 
section.
    The commenter recommended that the Council's NEPA procedures 
include a sunset provision (e.g., five years) for the use of existing 
NEPA documents. The commenter also recommended that the Council develop 
specific criteria indicating environmental, ecological or other 
conditions that would trigger the development of a new EA or EIS. The 
Council agrees that a critical test when adopting or otherwise using a 
NEPA document that was not recently completed is determining whether 
the information contained therein is adequate and consistent with the 
requirements established in NEPA and the CEQ regulations. To that end, 
the procedures state that, in cases where the Council adopts a NEPA 
document, 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. The Council will apply this test to all NEPA 
documents it considers adopting. However, the Council will not set an 
expiration date on NEPA documents, as the age of a NEPA document does 
not necessarily dictate whether the information contained therein 
satisfies NEPA. Establishing an expiration date for NEPA documents 
might eliminate otherwise adequate NEPA documents from potential 
Council use. No change was made to the procedures in response to this 
comment.
    The commenter recommended that the Council consider establishing an 
interagency co-located team for reviewing and preparing NEPA documents. 
The Council agrees that the use of interagency teams in the preparation 
and review of NEPA documents and other compliance information can 
result in greater efficiency and more robust information. Being 
comprised of a number of regulatory agencies, the Council is well-
positioned to conduct such interagency work. Indeed, the Council has an 
interagency team that works on a range of issues pertaining to NEPA and 
environmental compliance. Going forward, the Council intends to 
consider whether establishing a co-located interagency team would be an 
appropriate use of resources relative to the potential benefits it 
could provide. Such resource decisions are in large part contingent 
upon the ultimate amount of funding the Council will administer, a 
number that is not currently known. As this is a policy level 
recommendation, no change was made to the procedures in response to 
this comment.
    The commenter recommended that the Council establish a system to 
share relevant information and data with Council members and applicants 
preparing NEPA documents. The commenter also recommended that the 
Council apply lessons learned from prior NEPA coordination and share 
best practices with applicants and document preparers. In response, the 
Council agrees that sharing relevant information, data, and lessons-
learned with project sponsors and within the Council membership could 
help ensure efficient and effective NEPA processes. This is one of the 
roles of the interagency team referenced above. The Council will 
continue to conduct such activities, while also looking for other ways 
to effectively share information to improve environmental compliance 
outcomes. As this is a policy level recommendation, no change was made 
to the procedures in response to this comment.
    In addition to the modification discussed above, the Council has 
also made the following minor changes to the procedures to increase 
clarity and consistency. In Section 9 paragraph (b)(7), the Council 
added language indicating that copies of final EISs will also be 
provided to Federal agencies and other parties who commented 
substantively on the draft EIS. This change ensures consistency with 
similar language provided in Section 12 paragraph (c)(12) of the 
procedures. Also, Section 4 paragraph (h) has been revised to omit a 
reference to functional equivalence because it is not anticipated to be 
exercised with respect to the Council's activities. Finally, technical 
corrections were made to Section 4 paragraph (b), Section 5 paragraphs 
(b) and (c), and Section 13 paragraph (h)(8) to ensure consistency and 
compliance with NEPA, the CEQ Regulations, and a recent Executive 
Order.

IV. 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 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. These NEPA procedures 
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 certifies that these 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 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 procedures would not lead to the collection of information. 
On this basis, the Council has determined that these 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

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Federal government and Indian tribes. These 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 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 NEPA procedures do not in any way 
alter the right of tribal governments to engage in NEPA processes 
conducted by the Council. These NEPA procedures are intended to foster 
effective communication with tribal governments in that regard. The 
Council has therefore determined that these 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 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 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 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 
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.

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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 (NOI) to Prepare an EIS;
    (5) Draft, Final, or Supplemental Environmental Impact Statement;
    (6) Record of Decision; and
    (7) NOI 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 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) below); 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.
    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 subsection 4(f).
    (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

[[Page 25685]]

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 subsection 4(f).
    (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 subsection 4(d)(3) and 4(d)(4), 
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.
    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 under existing law. The 
Council will document its use of such an exemption pursuant to 
applicable requirements.

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 for funding the 
proposed project through the decision-making process.
    (c) Council Initiated Actions. The appropriate NEPA review 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 
proposal 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

[[Page 25686]]

preparation of NEPA documents relevant to its activities. Subsections 
(a) through (c) below 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) below), 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 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.

[[Page 25687]]

    (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 an NOI 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, and 
to Federal agencies and other parties who commented substantively on 
the draft 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.
    (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 subsection (1) through (3) below, as applicable:

[[Page 25688]]

    (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 
an 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 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

[[Page 25689]]

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 (1) 
through (9) of this subsection. 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 (3) through (13) of subsection (c) 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 regulations and the process detailed 
above in subsection 10(c). 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

[[Page 25690]]

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, as amended by E.O. 13690, 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 
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

[[Page 25691]]

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.
    (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, Gulf Coast Ecosystem Restoration Council.
[FR Doc. 2015-10439 Filed 5-4-15; 8:45 am]
 BILLING CODE 6560-58-P