Tuesday, December 15, 2009

WDNR Environmental Assessment of Vessel General Permit

The Wisconsin DNR (WDNR) has recently completed its environmental assessment for the proposed issuance of a general permit to regulate the discharge of ballast water from ships into the waters of the State. This assessment, completed to comply with the Wisconsin Environmental Policy Act (WEPA) clears the way for WDNR to issue its final discharge permit.

On February 23, 2009, the WDNR public noticed a general permit for commercial vessels which includes effluent discharge standards for ballast water. This permit also included an aggressive compliance schedule for implementation. The permit specifies biological effluent discharge standards and biocide effluent limits that, based upon best professional judgment, represent the best practicable technology currently available pursuant to § NR 220.21, Wis. Adm. Code. WDNR believes a permit for regulating ballast water beyond what EPA has developed is necessary to prevent the release of additional aquatic invasive species (AIS) and protect water quality standards in Wisconsin. The 2010-11 biennial budget bill signed by Governor Doyle in July 2009 provided for statutory authority to establish a discharge performance standard for ballast water.

Wisconsin’s General Permit will require discharges of ballast water to meet numeric technology based effluent limits based upon the number of living organisms in the discharge by 2014 for all existing ocean-going ships. Vessels constructed on or after January 1, 2012 would have to meet these requirements prior to operation. The permit is intended to minimize the further release of aquatic invasive species. The general permit requires all ocean-going vessels to meet discharge standards set at 100 times more stringent than the IMO standards. This discharge standard is similar to that adopted by New York in its § 401 Water Quality Certification. Plans and specifications of the treatment systems would require approval by the Department, to confirm the treatment has been approved by the USCG or an equivalent approval process, is effective and would comply with the discharge standards.

There is an exemption in this permit when ballast water is pumped from a vessel off-ship for treatment on another vessel or to a ballast water treatment system on-shore. Additionally, the permit allows for an alternative discharge limit, if the technology is not available to meet the discharge standards by December 31, 2011.

The federal general permit (VGP), effective December 19, 2008, that applies to all discharges incidental to the normal operation of a vessel1 includes a technology based standard for all ocean-going vessels. This standard has been required by the United States Coast Guard (USCG) for all vessels that enter the St. Lawrence Seaway since March 2008 and has proven ineffective as the introduction of aquatic invasive species has continued. On August 28, 2009, the USCG published in the federal register a new proposed ballast water discharge standard rule which requires a phased approach to ballast water discharge standards, with IMO being required in phase-one, and up to 1000 times IMO standards in phase-two. WDNR general permit contains technology based effluent limitations that represent the best practicable control technology currently available.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



3 Year Look Back Rule For Environmental Review

The "Three Year Look Back Rule" under Minnesota Environmental Quality Board Environmental Review requirements addresses how to determine whether a proposed expansion of an existing project requires a mandatory EAW due to the combined size of the existing project and the proposed expansion. The existing project’s magnitude must be added to that of the proposed expansion under the following conditions:

  • Construction of the existing project commenced less than three years ago; and
  • The existing project was not reviewed through an EAW or EIS.

The purpose of the 3-year look-back rule is to identify phased actions that are subject to review. This provision does not require EAW review of any existing stages of the project. It only requires the RGU to include previous stages in the calculation to determine if the EAW mandatory threshold is exceeded, not to review completed construction.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




Monday, December 14, 2009

EQB Mandatory Environmental Review Categories Proposed

The Minnesota Environmental Quality Board (EQB) is proposing amendments to environmental review rules adding several categories of projects that would require a Mandatory Environmental Assessment Worksheet (EAW) or a Mandatory Environmental Impact Statement (EIS). These amendments are in five areas:

  • New mandatory EAW, EIS, and Exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers;
  • Amendments to how the rules handle treatment of “cumulative potential effects” in EAWs, EIS, and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision;
  • Amendments to the Alternative Urban Areawide Review (AUAR) process with respect to how specific individual projects are treated or how they affect the review;
  • A new mandatory EIS category for releases of genetically-engineered wild rice, in response to a legislative directive in the 2007 session; and
  • Miscellaneous other amendments to clarify the meaning of certain rule provisions.



Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



US HUD Mandatory Vapor Intrusion Screening - ASTM E 2600

The U.S. Department of Housing and Urban Development (HUD) Office of Multifamily Housing has adopted Tier 1 vapor intrusion (VI) screens (the first of four tiers) under ASTM E 2600 as a mandatory component of Phase I environmental site assessments conducted under the agency's MAP (Multifamily Accelerated Processing) Guide. MAP is the procedure used by hundreds of MAP-approved lenders and HUD field offices throughout the country to process loan applications for Federal Housing Administration multifamily mortgage insurance.

Under the revised policy, a HUD Phase I ESA must include an initial vapor intrusion screen to determine if there is a potential for vapors to occur in the subsurface below existing and/or proposed on-site structures from those hazardous substances, petroleum and petroleum products that consist of VOCs, SVOCs and inorganic volatile compounds.

HUD is one of two Federal lending agencies that that prescribe additional mandatory requirements to a Phase I ESA. The Small Business Administration also has additional enviornmental review requirements for participation in its lending programs.

SBA Environmental Review / RSRA / Phase I Environmental Site Assessment Requirements

Caltha LLP assists prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.

Caltha Environmental Review Website



Friday, December 11, 2009

FTA Requirement For Energy Assessments During Environmental Review

Applications for Federal Transit Administration (FTA) assistance for the construction, reconstruction, or modification of buildings require completion of an energy assessment. The energy assessment must be documented as part of the Environmental Assessment or Environmental Impact Statement. For projects which do not require an environmental assessment or EIS, the energy assessment must be submitted with the application for FTA assistance for actual construction.

An energy assessment consists of an analysis of the total energy requirements of a building, including:

(1) Overall design of the facility or modification, and alternative designs;
(2) Materials and techniques used in construction or rehabilitation;
(3) Special or innovative conservation features that may be used;
(4) Fuel requirements for heating, cooling, and operations essential to the function of the structure, projected over the life of the facility and including projected costs of this fuel; and
(5) Kind of energy to be used, including:
(i) Consideration of opportunities for using fuels other than petroleum and natural gas, and
(ii) Consideration of using alternative, renewable energy sources.


Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Saturday, December 5, 2009

What Is A Phased Action For Environmental Impact Analysis?

Phased actions are often defined as two or more projects by the same proposer that will have environmental effects on the same geographic area and are substantially certain to be undertaken sequentially over a limited period of time. This definition usually involves three components:

  • Same proposer,
  • Same area affected, and
  • Timing.

The third component, the relative timing of the phases, involves the most uncertainty and therefore is often the most difficult component to apply.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




Environmental Review For Connected Projects - Connected Actions

Certain types of projects are regulated as "connected actions" for purposes of defining a project for environmental review. Three types of relationships between projects often qualify as connected actions:

  • One induces the other;
  • One is a prerequisite for the other and is not justified by itself (the first occurring previously or simultaneously); or
  • Neither is justified by itself; that is, the two projects are interdependent parts of a larger whole.
Whenever two or more projects are related in any of these ways, they may have to be considered as one project, regardless of ownership or timing.

It is not common for projects to be “connected actions.” Common examples of connected actions include multi-site animal feedlots or when a major development project triggers construction of public infrastructure, such as a road or sewer that would not otherwise be needed.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




State Environmental Review - Environmental Assessment

Caltha provides environmental review services to meet NEPA and State requirements. Some States have enacted their own State level environmental requirements for regulating actions by State agencies.

To request further information on environmental review services for individual
States, click on a State below:

[See a map showing States where Caltha LLP worked in 2008]

Alabama Environmental Review
Alaska Environmental Review
Arkansas Environmental Review
California Environmental Review
Connecticut Environmental Review
Florida Environmental Review
Georgia Environmental Review
Illinois Environmental Review
Indiana Environmental Review
Iowa Environmental Review
Kansas Environmental Review
Kentucky Environmental Review
Louisiana Environmental Review
Maine Environmental Review
Massachusetts Environmental Review
Michigan Environmental Review
Minnesota Environmental Review
Mississippi Environmental Review
Nebraska Environmental Review
Nevada Environmental Review
New Jersey Environmental Review
New York Environmental Review
North Carolina Environmental Review
North Dakota Environmental Review
Ohio Environmental Review
Oklahoma Environmental Review
Oregon Environmental Review
Pennsylvania Environmental Review
South Carolina Environmental Review
South Dakota Environmental Review
Tennessee Environmental Review
Texas Environmental Review
Utah Environmental Review
Virginia Environmental Review
Washington Environmental Review
Wisconsin Environmental Review


Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




FTA Categorical Exclusion - State Environmental Review

The Federal Transit Administration (FTA) has developed specific categories for environmental review in compliance with NEPA. For certain types of projects, FTA may require project proposers to complete sufficient environmental analysis such that FTA can determine that the proposed project meets the criteria for a Categorical Exclusion (CE) under 27 CFR 771.117(d). By meeting these criteria, FTA will meet Categorical Exclusion criteria under NEPA (40 CFR 1508.4), and ultimately neither the proposer nor FTA will be required to conduct an Environmental Assessment as prescribed under 27 CFR 771.119. FTA could then take actions, including providing project funding.

In States which have their own State environmental review requirements, environmental review requirements may apply, even if a project meets the requirements for an FTA Categorical Exclusion.


Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Sixty Day Rule - Minnesota Environmental Review

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific petitions, including

  • zoning,
  • septic systems,
  • watershed district review,
  • soil and water conservation district review, or
  • expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.

Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Tuesday, December 1, 2009

Wisconsin Environmental Policy Act WEPA

The Wisconsin Environmental Policy Act (WEPA) is a state law designed to encourage environmentally sensitive decision making by state agencies. WEPA spells out the state's environmental policy and requires the WDNR and other state agencies to consider the environmental effects of their actions to the extent possible under their other statutory authorities. It also establishes the principle that broad citizen participation should be part of environmental decision-making. WEPA imposes procedural and analytical responsibilities on the DNR and other agencies, but does not provide authority to protect the environment. While this law does not apply to local government decisions, local projects involving state financial assistance or regulatory oversight are affected by it.

WEPA requires the WDNR and other state agencies to gather relevant environmental information and use it in their decision-making. Agencies must also look at appropriate alternatives to the particular course of action they are proposing. If the action is a "major action significantly affecting the quality of the human environment," the law requires agencies to consult with other agencies about possible environmental impacts, prepare and circulate an environmental impact statement (EIS), and hold a public hearing.

WEPA applies only to the actions of state agencies. The law does not apply to local governments or private parties unless their actions involve state agency regulation or funding. Application of the law in state agency decision making has limitations, including not allowing the agency to substitute an alternative to what is proposed.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




Monday, November 30, 2009

Changes To Mandatory Environmental Review Criteria

The Minnesota Environmental Quality Board (EQB) is proposing amendments to environmental review rules adding several categories of projects that would require a Mandatory Environmental Assessment Worksheet (EAW) or a Mandatory Environmental Impact Statement (EIS). These amendments are in five areas:

  • New mandatory EAW, EIS, and Exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers;
  • Amendments to how the rules handle treatment of “cumulative potential effects” in EAWs, EIS, and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision;
  • Amendments to the Alternative Urban Areawide Review (AUAR) process with respect to how specific individual projects are treated or how they affect the review;
  • A new mandatory EIS category for releases of genetically-engineered wild rice, in response to a legislative directive in the 2007 session; and
  • Miscellaneous other amendments to clarify the meaning of certain rule provisions.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Is Environmental Review Equal To Phase I Environmental Site Assessment?

Is Environmental Review the same as a “Phase I” or “Phase 1 Environmental Site Assessment”?

No; a Phase I ESA is not the same as “Environmental Review”. Generally, environmental review considers the impacts of a "project", while environmental site assessment considers the condition of the land.


Environmental Review is usually much broader in scope. Environmental review typically includes issues that are not included in a Phase I ESA, including sensitive ecosystems, wetland impacts, environmental justice, etc. However, there can be some overlap – some environmental reviews might include some of the same inquiries and document reviews that would be included in a Phase I ESA.

Click here if you need more information on Phase I Environmental Assessment

Or click here if you need information on Small Business Administration (SBA) or HUD Phase I ESA requirements

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website




Environmental Quality Board Cumulative Impacts Definition

The Minnesota Environmental Quality Board (EQB) is currently proposing amendments to its rules governing environmental reviews, Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS). The proposed amendments address a number of different aspects regarding mandatory environmental review.

One of the important amendments being proposed is under the definitions relating to “cumulative impacts”, as cumulative impacts need to be addressed in environmental review. Under current rules, cumulative impact is defined as:

“Cumulative impact" means the impact on the environment that results from incremental effects of the project in addition to other past, present, and reasonably foreseeable future projects regardless of what person undertakes the other projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.

The amendment adds a definition for “cumulative potential effects”;


"Cumulative potential effects" means the effect on the environment that results from the incremental effects of a project in addition to other projects in the environmentally relevant area that might reasonably be expected to affect the same environmental resources, including future projects actually planned or for which a basis of expectation has been laid, regardless of what person undertakes the other projects or what jurisdictions have authority over the projects. Significant cumulative potential effects can result from individually minor projects taking place over a period of time. In analyzing the contributions of past projects to cumulative potential effects, it is sufficient to consider the current aggregate effects of past actions. It is not required to list or analyze the impacts of individual past actions, unless such information is necessary to describe the cumulative potential effects. In determining if a basis of expectation has been laid for a project, an RGU must determine whether a project is reasonably likely to occur and, if so, whether sufficiently detailed information is available about the project to contribute to the understanding of cumulative potential effects. In making these determinations, the RGU must consider: whether any applications for permits have been filed with any units of government; whether detailed plans and specifications have been prepared for the project; whether future development is indicated by adopted comprehensive plans or zoning or other ordinances; whether future development is indicated by historic or forecasted trends; and any other relevant factors.

EQB has scheduled public hearings on the proposed amendments to be held around the State.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Housing & Urban Development Environmental Review

For a single family home that is being demolished and rebuilt, what type of environmental review will be required under Neighborhood Stabilization Program?

According to the Housing & Urban Development (HUD) , the level of environmental review required depends upon the program design and project description. The responsible entity needs to consider the use of the categorical exclusion:

§58.35 Categorical exclusions.
Categorical exclusion refers to a category of activities for which no environmental impact statement or environmental assessment and finding of no significant impact under NEPA is required, except in extraordinary circumstances (see §58.2(a)(3)) in which a normally excluded activity may have a significant impact. Compliance with the other applicable Federal environmental laws and authorities listed in §58.5 is required for any categorical exclusion listed in paragraph (a) of this section.
(a) Categorical exclusions subject to §58.5. The following activities are categorically excluded under NEPA, but may be subject to review under authorities listed in §58.5:
(4)(i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or
(ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site.
(iii) Paragraphs (a)(4)(i) and (ii) of this section do not apply to rehabilitation of a building for residential use (with one to four units) (see paragraph (a)(3)(i) of this section).


“Individual action” as used in §58.35(a) refers to an individual approval action about the particular dwelling unit(s) and may include new construction, demolition, and/or reconstruction (demolition and new construction). However, note that this categorical exclusion does not apply to rehabilitation of a building for residential use.

A responsible entity (RE) may apply the categorical exclusion at §58.35(a) on an individual application basis, allowing the RE to use this categorical exclusion when an individual applicant is submitting an application for construction, demolition and/or reconstruction of dwelling units. If the RE designs a program where individual applicants will be submitting applications for new construction of up to four dwelling units, then each individual application may be considered to be categorically excluded per §58.35(a)(4)(i). If the RE designs a program where individual applicants will be submitting applications for a project of five more housing units on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site, then each individual application may be considered to be categorically excluded per §58.35(a)(4)(ii).

If the Neighborhood Stabilization Program is clearly designed and intended to develop a specific block/neighborhood or other limited geographic area, then an environmental assessment for the program/area will be required.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Minnesota EQB Environmental Review Summary - RGU

In Minnesota, any environmental review begins by determining what organization will serve as the Responsible Government Unit, or RGU. This includes Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS). Minnesota rules list what organizations serve as the RGU for all projects that must undergo some sort of mandatory review. State organizations that serve as RGUs include the Environmental Quality Board (EQB), Minnesota Pollution Control Agency (MPCA), Dept. of Natural Resources (DNR), Dept. of Transportation (MDOT) and the Dept. of Health (MDH). The Metropolitan Airports Commission (MAC) serves as the RGU for some types of airport projects. Local units of government serve as the RGU for many smaller scale projects.

If a unit of government orders some form of discretionary environmental review, that unit of government also serves as the RGU. In some instances, the EQB has the authority to change the RGU. The EQB can make this change only if the newly appointed RGU has greater expertise in analyzing the potential environmental impacts of a proposed project.


Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



Does Every Federal Agency Action Require Environmental Review?

Yes and no; because NEPA is a procedural law, CEQ requires each federal agency to write their own NEPA compliance regulations to fit their particular programs. However, every Federal agency is subject to NEPA. Most agencies have established categories of actions that do not require environmental review, or require a streamlined environmental review:

Categorical Exclusions (CE) – most agencies will have promulgated a list of types of actions that do not require any environmental review; by their nature, these types of actions have no significant environmental impact.

Documented Categorical Exclusions (dCE) – most agencies will also promulgate a list of actions that require a streamlined environmental review; often, the scope these environmental reviews will be directed in the agency’s Categorical Exclusion Environmental Review Checklist.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website



What Is NEPA?

On January 1, 1970 the National Environmental Policy Act of 1969 (NEPA) was signed into Law. NEPA established a national environmental policy intentionally focused on Federal activities and the desire for a sustainable environment balanced with other essential needs of present and future generations of Americans.

NEPA established a supplemental mandate for Federal agencies to consider the potential environmental consequences of their proposals, document the analysis, and make this information available to the public for comment prior to implementation. The environmental protection policy established in NEPA, Section 101, is supported by a set of "action forcing" provisions in Section 102 that form the basic framework for Federal decisionmaking and the NEPA process.

While NEPA established the basic framework for integrating environmental considerations into Federal decisionmaking, it did not provide the details of the process for which it would be accomplished. Federal implementation of NEPA was the charge of the Council on Environmental Quality (CEQ), which interpreted the law and addressed NEPA’s action forcing provisions in the form of regulations and guidance.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

Caltha Environmental Review Website