Environmental Review | Environmental Impact Assessment: November 2009

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

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.

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.

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.

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.

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.