Proposed Changes To FTA FHA Categorical Exemptions

The Federal Highway Administration (FHA) and Federal Transit Administration (FTA) have published a Notice of proposed rulemaking (NPRM) which proposes to amend some Categorical Exemptions the agencies use to comply with the National Environmental Policy Act (NEPA). The NPRM provides interested parties with the opportunity to comment on proposed changes to the Federal Highway Administration (FHWA) and the Federal Transit Administration's (FTA) joint procedures that implement the National Environmental Policy Act (NEPA). Comments must be received on or before April 29, 2013.

The revisions are in response to the Moving Ahead for Progress in the 21st Century Act. The agencies propos to add new categorical exclusions for projects within an existing operational right-of-way and projects receiving limited Federal funding. Funding thresholds being proposed are projects receiving less than $5,000,000 of Federal funds; or with a total estimated cost less than $30,000,000 and Federal funds comprising less than 15% of the total estimated project cost.

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Changes To Environmental Review For Federal Transit Administration - Federal Highway Administration

Federal Transit Administration (FTA), Federal Highway Administration (FHWA) have published a final rule revising some of their Environmental review and Related Procedures. This final rule makes revisions to the joint FTA and FHWA regulations that implement the National Environmental Policy Act (NEPA). The final rule is effective on February 7, 2013

FTA and FHWA published a Notice of Proposed Rulemaking (NPRM) on March 15, 2012. In the NPRM, FTA proposed: (1) The creation of ten new categorical exclusions (CEs) to be located in a newly proposed section of the regulation at 23 CFR 771.118; (2) the expansion of public involvement methods to include electronic means; (3) the addition of language on early scoping into the regulations; (4) a modification to the list of project types that normally result in the preparation of an Environmental Impact Statement (EIS); and (5) the inclusion of an FTA review role in contracting for Environmental Assessment (EA) and EIS projects. The comment period closed on May 14, 2012.

Of the five major changes FTA and the FHWA included in the March 2012 NPRM, four are being carried forward in this final rule: (1) The creation of ten new CEs to be located in a newly proposed section of the regulation at 23 CFR 771.118; (2) the expansion of public involvement methods to include electronic means; (3) the addition of language on early scoping into the regulations; and (4) a modification to the list of project types that normally result in the preparation of an EIS. FTA intends that the preamble language contained in this final rule be used as guidance when applying the changes made by this final rule.

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Use of e-NEPA System Required After October 1, 2012

U.S. Environmental Protection Agency (EPA) has announced the release of e-NEPA, a new online system that allows federal agencies to submit environmental impact statements (EISs) electronically. Traditionally, EISs have been submitted to EPA in hard copy. e-NEPA eliminates the need to mail or deliver copies of EISs to EPA headquarters, reducing printing, shipping, and delivery costs. EPA also belives it will save time through electronic filing and e-confirmation and improves transparency, allowing EPA to post EIS documents to EPA’s website.

The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental considerations into their decision-making processes by identifying the environmental impacts and reasonable alternatives to their proposed actions. To meet NEPA requirements federal agencies prepare detailed analyses known as EISs. EPA reviews, provides comments, and maintains a national filing system for EISs.

Beginning on October 1, 2012, all agencies are required to use the e-NEPA filing system.


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NEPAssist Mapping Tool For NEPA Projects

The U.S. Environmental Protection Agency (EPA) announced the public release of a web-based mapping tool developed for Federal agencies to facilitate more efficient and effective environmental reviews and project planning. The tool, NEPAssist, is part of an initiative developed by the White House Council on Environmental Quality (CEQ) to modernize and reinvigorate federal agency implementation of the National Environmental Policy Act (NEPA) through innovation, public participation and transparency. NEPAssist draws information from publicly available federal, state, and local datasets, allowing NEPA practitioners, stakeholders and the public to view information about environmental conditions within the area of a proposed project quickly and easily at early stages of project development.
In October 2011, NEPAssist was selected as a White House Council on Environmental Quality National Environmental Policy Act Pilot Project to improve the efficiency of Federal environmental reviews. CEQ has selected five NEPA Pilot Projects that will employ innovative approaches to completing environmental reviews that can be replicated across the Federal Government. On Thursday, April 26, 2012, EPA will host a webinar to demonstrate how to use NEPAssist.

NEPA requires all federal agencies to incorporate environmental considerations in their planning and decision-making through a systematic interdisciplinary process. NEPAssist is designed to help promote collaboration and early involvement in the NEPA process by raising important environmental issues at the earliest stages of project development. The mapping tool can be used by Federal agencies to identify alternative project locations, to avoid and minimize impacts, as well as identify potential mitigation areas.

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Categorical Exclusions for Offshore Drilling Restricted

The Department of the Interior and Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM) announced that the department will restrict its use of categorical exclusions for offshore oil and gas development to activities involving limited environmental risk, while it undertakes a comprehensive review of its National Environmental Protection Act (NEPA) process and the use of categorical exclusions for exploration and drilling on the Outer Continental Shelf.

Department of the Interior intends to conduct a new environmental analysis in the Gulf of Mexico that will help provide information to guide future leasing and development decisions. BOEM intents to complete a supplemental environmental impact statement for the Gulf.

The announcements follow the release of the Council on Environmental Quality’s (CEQ) report on the former Minerals Management Service’s NEPA program. The report was done in close consultation with Interior and BOEM which replaced the Minerals Management Service.

BOEM will issue a Federal Register notice announcing a formal process for the comprehensive review and evaluation of its use of categorical exclusions in relation to offshore oil and gas exploration and drilling activities. While this review is underway, BOEM will be using categorical exclusions on a more limited basis. For actions that potentially involve more significant environmental risk, Department of Interior officials intend to subject more decisions to environmental assessments.

When the review is completed, BOEM will announce a new approach to NEPA compliance that takes into account the joint recommendations included in CEQ‘s report, statutory and/or regulatory constraints, and other appropriate factors. This is consistent with the Council’s regulations directing all federal agencies to periodically review their NEPA policies and procedures.

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Environmental Justice Guidance Document

U.S. Environmental Protection Agency (EPA) released interim guidance to help agency staff incorporate environmental justice into the agency’s rulemaking process.

The guidance document, “Interim Guidance on Considering Environmental Justice During the Development of an Action”, seeks to advance environmental justice for low-income, minority and indigenous communities and tribal governments who have been historically underrepresented in the regulatory decision-making process. The guidance also outlines the multiple steps that EPA program offices can take to incorporate the needs of overburdened neighborhoods into the agency’s decision-making, scientific analysis, and rule development.

EPA is also seeking public feedback on how to best implement and improve the guide for agency staff to further advance efforts toward environmental justice.

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Revised BLM NEPA Handbook

The US Department of the Interior – Bureau of Land Management (BLM) has released a revised BLM NEPA Handbook for use by BLM personnel in the field. The handbook provides supplemental information, guidance, and examples to assure consistency with the Department of the Interior’s Departmental Manual (DOI DM) and the Council on Environmental Quality (CEQ) NEPA regulations. The BLM NEPA Handbook (H–1790–1) was last updated in 1988 and revisions are necessary to update the information and to reflect current NEPA guidance.

The handbook revisions focus on helping the BLM improve analysis to support decision making. The revisions to the NEPA Handbook are also designed to make the NEPA process more efficient, avoiding redundant or unnecessary documentation. The revisions include updates to clarify definitions and incorporate new Departmental requirements.

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HUD Section 50 Section 58 Environmental Review & Environmental Assessment

The U.S. Department of Housing and Urban Development (HUD) requires environmental reviews for housing projects to be completed prior to approval of financial assistance. The objective of the review process is to ensure that due diligence has been undertaken in identifying potential impacts, including both environmental and non-environmental impacts, associated with projects that use HUD funds. An Environmental Review required by HUD is not equivalent to a Phase I Environmental Site Assessment.

The HUD Environmental Review process is driven by two regulations: 24 CFR Part 50 and 24 CFR Part 58. Part 50 pertains to the Department of Housing and Urban Development and those entities that have legal responsibilities to the Secretary of the Interior. In most cases this is HUD itself and state/city housing authorities. Part 58 pertains to those entities that do not have legal responsibilities to the Secretary (e.g., community housing and “faith-based” organizations).

The level or extent of the HUD Environmental Review is dependant on the type of proposed work, the number of units, or a percentage of total area can be a threshold. Under both Part 50 and Part 58, exemptions, categorical exclusions, documented categorical exclusions exist.

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Draft Mitigation Requirements Under NEPA

The Council on Environmental Quality (“CEQ”) has issued its “Draft Mitigation Guidance” outlining requirements for monitoring and reporting the status of substantive mitigation of impacts identified following NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.


CEQ’s Draft Mitigation Guidance directs federal agencies, during the environmental review process to:

• Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
• Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
• Make the results of their monitoring available to the public, preferably through the lead agency’s web site.
  

NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts. The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS, in discussing alternatives to the proposed action and the consequences of the proposed action and its alternatives, and in explaining its ultimate decision.

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI (“Finding of No Significant Impact”) or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The existing NEPA regulations require agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. The Draft Mitigation Guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The existing NEPA regulations also indicate that “upon request” lead agencies should make available to the public the results of relevant monitoring. The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public.

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CEQ Guidance on NEPA Requirements for Climate Change

The Council on Environmental Quality (CEQ), has issued three draft guidance documents related to the implementation of the National Environmental Policy Act (NEPA),. The new guidance, issued in draft for public comment, directs how federal agencies are to:

• Consider the effects of climate change and greenhouse gas emissions (GHGs) in agency decision-making;
• Use mitigation to reduce or avoid impacts, and monitoring their effectiveness; and
• Establish and apply categorical exclusions.

Public comments on the proposed GHG and mitigation guidance documents will be accepted for 90 days after they are printed in the Federal Register, and comments on the categorical exclusion guidance will be accepted for 45 days.

NEPA requires federal agencies to publicly disclose and consider the environmental consequences of their actions and of private actions requiring federal permits or approvals. It is a process-oriented statute and is not prescriptive in nature. NEPA does not mandate specific environmental results and grants federal agencies broad discretion to determine the extent of environmental protection required for proposed actions.

In the draft GHG guidance, CEQ proposes a framework on when and how to evaluate GHG emissions, and how to evaluate the effect of climate change on the project. The GHG guidance indicates that as part of the initial scoping process, agencies should determine whether a project requiring federal approval will result in “meaningful” GHG emissions, and suggests that emissions greater than 25,000 metric tons may meet this test. Emissions above this level would warrant at least some qualitative or quantitative discussion in NEPA documents.

The GHG guidance also recognizes that there are no existing federal protocols for estimating emissions associated with land use and land management decisions. It also recognizes that determining the reasonably foreseeable impacts of land management decisions on GHG emissions may be difficult.

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Final Rule on NRCS Categorical Exclusions Under NEPA

The Natural Resources Conservation Service (NRCS) published an interim final rule on July 13, 2009, that identified additional categorical exclusions, which are actions that NRCS has determined do not individually or cumulatively have a significant effect on the human environment. Therefore, these actions should not require preparation of an environmental assessment (EA) or environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).

The final rule, effective February 10, 2010, makes final the provisions set forth in the interim final rule. NRCS' categorical exclusions encompass actions that promote restoration and conservation activities related to past natural or human induced damage, or alteration of floodplains and watershed areas. For projects being funded under the American Recovery and Reinvestment Act of 2009 (ARRA), NRCS believes the final rule will assist the Service in meeting mandates set forth in ARRA for undertaking actions in the most expeditious manner and in compliance with NEPA.

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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.

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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.

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