[Federal Register Volume 85, Number 186 (Thursday, September 24, 2020)]
[Notices]
[Pages 60137-60139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21044]
=======================================================================
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
Emergencies and the National Environmental Policy Act Guidance
AGENCY: Council on Environmental Quality (CEQ).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: On September 14, 2020, the Council on Environmental Quality
(CEQ) issued guidance, CEQ-NEPA-2020-01, in a memorandum to the heads
of Federal departments and agencies (agencies) to assist agencies with
compliance with the National Environmental Policy Act (NEPA) during
emergencies. The CEQ regulations implementing NEPA provide for
alternative arrangements during emergencies when an agency's action is
likely to have significant effects and would require preparation of an
environmental impact statement. This guidance also addresses compliance
with NEPA when the action is unlikely to have significant effects and
might require preparation of an environmental assessment or application
of a categorical exclusion.
DATES: This guidance is effective on September 14, 2020.
FOR FURTHER INFORMATION CONTACT: Thomas Sharp, Principal Deputy
Associate Director for NEPA, 202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
Guidance No. CEQ-NEPA-2020-01
Memorandum for Heads of Federal Departments and Agencies
From: Mary B. Neumayr, Chairman.
Subject: Emergencies and the National Environmental Policy Act
Guidance.
This guidance \1\ updates and replaces previous guidance from the
Council on Environmental Quality (CEQ) on the environmental review of
proposed emergency response actions under the National Environmental
Policy Act, 42 U.S.C. 4321-4347 (NEPA).\2\ Federal departments and
agencies (agencies) should distribute this guidance as part of their
general guidance on emergency actions to agency offices that are or may
become involved in developing and taking actions in response to
emergencies.
---------------------------------------------------------------------------
\1\ The contents of this guidance do not have the force and
effect of law and are not meant to bind the public in any way. This
memorandum is intended only to provide clarity to the public
regarding existing requirements under the law or agency policies.
\2\ This guidance replaces guidance issued by CEQ on September
29, 2016, May 12, 2010, and September 8, 2005. CEQ rescinds the
prior guidance.
---------------------------------------------------------------------------
As agencies respond to situations involving immediate threats to
human health or safety, or immediate threats to valuable natural
resources, they must consider whether there is sufficient time to
follow the procedures for environmental review established in the CEQ
National Environmental Policy Act Implementing Regulations, 40 CFR
parts 1500-1508 (CEQ NEPA regulations),\3\ and their agency NEPA
procedures.
---------------------------------------------------------------------------
\3\ https://ceq.doe.gov/laws-regulations/regulations.html.
---------------------------------------------------------------------------
This guidance does not establish new requirements. CEQ established
the regulation addressing alternative arrangements in emergency
circumstances in 1978,\4\ and amended it in 2020 to clarify that it
provides for alternative arrangements for compliance with NEPA section
102(2)(C) (42 U.S.C. 4332(C)).\5\ 40 CFR 1506.12. CEQ has approved, and
agencies have applied successfully, numerous alternative arrangements
to allow a wide range of proposed actions in emergency circumstances
including natural disasters, catastrophic wildfires, threats to species
and their habitat, economic crisis, infectious disease outbreaks,
potential dam failures, and insect infestations.\6\
---------------------------------------------------------------------------
\4\ 43 FR 55977, Nov. 29, 1978.
\5\ 85 FR 43304, July 16, 2020.
\6\ A synopsis of previous alternative arrangements is available
at https://ceq.doe.gov/nepa-practice/alternative_arrangements.html.
---------------------------------------------------------------------------
Attachment 1 provides agencies with a step-by-step process for
determining the appropriate path forward for the NEPA environmental
review of all actions proposed in response to an emergency situation.
Environmental Impact Statements
The CEQ regulations, at 40 CFR 1506.12, provide for alternative
arrangements for NEPA compliance in emergency situations when the
agency proposal has the potential for significant environmental impacts
and would require an environmental impact statement (EIS) if the
situation were not an emergency:
Where emergency circumstances make it necessary to take an
action with significant environmental impact without observing the
provisions of the regulations in [parts 1500-1508], the Federal
agency taking the action should consult with the Council about
alternative arrangements for compliance with section 102(2)(C) of
NEPA. Agencies and the Council will limit such arrangements to
actions necessary to control the immediate impacts of the emergency.
Other actions remain subject to NEPA review.
Agencies develop these alternative arrangements, based on
emergency-specific facts and circumstances, during consultation with
CEQ. The alternative arrangements developed by an agency address the
actions necessary to respond immediately to the impacts of an
emergency. The long-term response to the emergency, including recovery
actions, remains subject to the regular NEPA process set forth in the
CEQ NEPA regulations.
Alternative arrangements do not waive the requirement to comply
with the statute, but establish an alternative means for NEPA
compliance. Alternative arrangements also do not complete or alter
other environmental requirements (except as provided by other
environmental statutes or regulations); however, engaging other
resource and regulatory agencies about other environmental requirements
during development and implementation of alternative arrangements can
facilitate meeting other compliance requirements. Final agency action
taken pursuant to alternative arrangements for compliance with NEPA
under 40 CFR 1506.12 may
[[Page 60138]]
be subject to judicial review if a statute, such as the Administrative
Procedure Act, provides for such review.
Attachment 1 describes the factors for an agency to address when
requesting and designing alternative arrangements. Once the agency
develops the alternative arrangements, CEQ will provide documentation
detailing the alternative arrangements and the considerations on which
they are based.
Environmental Assessments
When agencies are considering proposals with less than significant
impacts or are uncertain about the significance of impacts, the agency
can prepare a concise, focused environmental assessment (EA).
Attachment 2 of this memorandum provides guidance for preparing an EA.
Some agency NEPA procedures provide processes for preparing EAs for
emergency actions.\7\ Agencies must continue their efforts to notify
and inform the affected public and relevant Federal, State, Tribal, and
local agency representatives of the Federal agency activities and
proposed actions. Agencies must comply with the CEQ NEPA regulatory
requirements for content, interagency coordination, and public
involvement to the extent practicable.\8\
---------------------------------------------------------------------------
\7\ See Agency NEPA procedures, for example: Department of
Homeland Security Instruction Manual 023-01-001-01, Revision 01 at
VI-1, https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf; U.S. Forest Service, 36 CFR
220.4(b), http://www.fs.fed.us/emc/nepa/nepa_procedures/includes/fr_nepa_procedures_2008_07_24.pdf; and Department of the Interior,
43 CFR 46.150, https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=2a2ce144c79da6f3e773bfa9cdf17bcf&mc=true&n=sp43.1.46.b&r=SUBPART&ty=HTML#se43.1.46_1150.
\8\ 40 CFR 1501.5, 1501.6, and 1506.6 (these regulations address
required content and public involvement for preparing EAs and
Findings of No Significant Impact).
---------------------------------------------------------------------------
Attachment 1
Emergency Actions Under the National Environmental Policy Act (NEPA)
In the case of an emergency:
1. Do not delay immediate actions necessary to secure lives and
safety of citizens or to protect valuable resources. Consult with CEQ
as soon as feasible. Please coordinate any communications with your
Federal agency NEPA contacts. See https://ceq.doe.gov/nepa-practice/agency-nepa-contacts.html.
2. Determine if NEPA applies and the appropriate level of NEPA
analysis:
[ssquf] Determine if a Federal agency is taking the proposed action
(e.g., city or State action does not trigger NEPA; Federal decisions to
fund city or State action may trigger NEPA, depending on the nature of
the funding arrangements) or is exempt from NEPA (e.g., certain Federal
Emergency Management Agency response actions under the Stafford Act are
statutorily exempt from NEPA; additional information is available at
https://www.fema.gov/media-library-data/20130726-1748-25045-1063/stafford_act_nepa_fact_sheet_072409.pdf.).
[ssquf] If the Federal agency's proposed emergency response
activity is not statutorily exempt from NEPA, and the agency has a
categorical exclusion (CE) that includes that type of activity, then
apply the CE unless there are extraordinary circumstances that indicate
using the CE in this particular case is not appropriate. Agency NEPA
personnel can assist in identifying agency-specific actions that are
categorically excluded.
[ssquf] If the proposed Federal agency emergency response activity
is not statutorily exempt from NEPA, a CE is not available, and the
agency does not expect the potential environmental impacts of the
proposed response activity to be significant, then an environmental
assessment (EA) is appropriate. Prepare a focused, concise EA as
described in Attachment 2. Alternative arrangements, as outlined at 40
CFR 1506.12, do not apply because the environmental impacts are not
expected to be significant. Agency NEPA personnel can assist in
identifying agency-specific actions that typically require an EA.
[ssquf] If the proposed Federal emergency response activity is not
statutorily exempt from NEPA, and the agency expects it would have
significant environmental impacts, the agency should determine whether
an existing NEPA analysis covers the activity (e.g., implementing pre-
existing spill response plans). If so, the agency may rely upon its
existing analysis or adopt the analysis of another agency consistent
with 40 CFR 1506.3.
[ssquf] If the proposed Federal emergency response activity is not
statutorily exempt from NEPA, the agency expects it to have significant
environmental impacts, and an existing NEPA analysis does not cover the
activity, then the agency should consult with CEQ to determine whether
alternative arrangements can take the place of an EIS. Contact CEQ to
develop alternative arrangements under 40 CFR 1506.12. CEQ's main phone
number is (202) 395-5750.
3. Factors to address when requesting and designing alternative
arrangements include the:
[ssquf] Nature and scope of the emergency;
[ssquf] Actions necessary to control the immediate impacts of the
emergency;
[ssquf] Potential adverse effects of the proposed action;
[ssquf] Components of the NEPA process that the agency can follow
and provide value to decision making (e.g., coordination with affected
agencies and the public);
[ssquf] Duration of the emergency; and
[ssquf] Potential mitigation measures.
Attachment 2
Preparing Focused, Concise and Timely Environmental Assessments
An agency can prepare a concise and focused EA in a short time in
those situations where:
[ssquf] There is no statutory exemption from NEPA requirements;
[ssquf] There is no CE available, either because the agency has
none that cover the activity or there are extraordinary circumstances;
[ssquf] An existing NEPA analysis (EA or EIS) does not cover the
proposed recovery or response actions; and
[ssquf] The environmental impacts of the proposed recovery or
response actions are not likely to be significant.
The following outline with notations addresses the core elements of
an EA as required by 40 CFR 1501.5:
[ssquf] The purpose and need for the proposed action;
[ssquf] Alternatives as required by NEPA section 102(2)(E);
[ssquf] The description of environmental impacts of the proposed
action and the alternatives; and
[ssquf] The list of agencies and persons consulted.
Purpose and Need for the Proposed Action
The agency should briefly describe information that substantiates
the purpose and need for the action and incorporate by reference
information that is reasonably available to the public. For example,
``This agency is preparing to erect a temporary emergency response
facility to replace facilities disrupted or destroyed by the
[hurricane/flooding/contamination/etc.] to facilitate rescue or relief
efforts in an effort to [minimize further adverse health conditions/
restore communications/restore power].''
The agency should briefly describe the existing conditions and the
projected future conditions of the area impacted by the action. For
example, ``The area(s) in which the temporary facility will be located
or relocated is identified in the attached map. This area consists of
[add brief description of the environmental state of the area that will
[[Page 60139]]
be affected by the location and operation of the facility, focusing on
those areas that are potentially sensitive. The goal is to show that
environmental effects have been considered and the facts found indicate
no significant impact (for example, refueling sites are not on top of
aquifers, nesting areas, graves, sacred sites, etc.). These are
examples to show the utility of and need to identify actual place-based
environmental issues rather than compiling lists of environmental
resources not at issue].''
Proposed Action and Alternatives
The agency should list and briefly describe its proposed action and
reasonable alternatives that meet the purpose and need. The agency must
use its discretion to ensure the number and range of reasonable
alternatives is reasoned and not arbitrary or capricious. The purpose
and need for the proposed action and its environmental impacts should
focus the alternatives. For example, the need to use existing
infrastructure necessary to support the facility is a reasoned basis
for focusing on a discrete number of alternatives.
When there is no conflict over the resource effects of the proposed
action based on input from interested parties, the agency can consider
the proposed action and proceed without consideration of additional
alternatives. Otherwise, the agency must identify reasonable
alternatives that meet the action's purpose and need, consistent with
section 102(2)(E) of NEPA.
Environmental Impacts of the Proposed Action and Alternatives
The agency should describe the environmental impacts of its
proposed action and each alternative. The description should provide
enough information to support a determination to either prepare an EIS
or a finding of no significant impact.
The agency should focus on whether the action would significantly
affect the quality of the human environment. The agency should follow
CEQ's NEPA regulations in considering whether the effects of a proposed
action are significant. 40 CFR 1501.3. Agency NEPA contacts and
contacts at resource agencies can assist in this effort.
Tailor the length of the discussion to the complexity of each
issue. Focus on those human and natural environment issues where
impacts are a concern. Telephone or email discussions with State,
Tribal, and local governments and agencies, and other Federal agencies
that operate in the area, will help focus those issues.
The agency must discuss the impacts of each alternative and may
discuss those impacts together in a comparative description, or discuss
each alternative separately. The agency should use the approach that
will be most effective in the time available. The agency may contrast
the impacts of the proposed action and alternatives with the current
condition and expected future condition in the absence of the action.
This constitutes consideration of a no action alternative as well as
demonstrating the need for the action.
The agency should incorporate by reference data, inventories, other
information, and analyses relied on in the EA. CEQ encourages the use
of hyperlinks in web-based documents. This information must be
reasonably available to the public. For example, include relevant
existing programmatic agreements and generally accepted best management
practices.
The agency should be clear and concise about its conclusions and
their bases.
List of Agencies and Persons Consulted
The agency must involve the public, relevant agencies, and any
applicants, to the extent practicable in preparing EAs, and list the
agencies and persons consulted. For example, include the people,
offices, and agencies that the agency coordinated with to ensure that
the location of the action did not cause unintentionally an adverse
impact. Also include information about individuals consulted to comply
with substantive environmental requirements and regulations, for
example: The Clean Water Act, the National Historic Preservation Act,
and the Endangered Species Act (ESA). [Note that the ESA emergency
provisions at 50 CFR 402.05 may be applicable to the proposed action.]
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375.
Mary B. Neumayr,
Chairman.
[FR Doc. 2020-21044 Filed 9-23-20; 8:45 am]
BILLING CODE 3225-F0-P