NEPA Documents and Terminology

NEPA Documents and Terminology

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Section objectives:At the end of this section, you should:

• Understand the difference between the various NEPA documents,

• Know the functions of each particular document,

• Know what should be contained in various documents, and;

• Understand various NEPA terms.

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References – OSM Reg 1 Handbook on Procedures for Implementing NEPA.

• CEQ Regs for Implementing NEPA• DOI Manual 516 DM 1-7• CEQ 40 Questions• CEQ Scoping Guidance• CEQ NEPA Regs Guidance• Environmental Statement Memorandum• Environmental Compliance Memorandum• Environmental Review Memorandum

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ReferencesNEPA Procedures Course Handouts

• NEPA Memorandum• Agenda• Chapter 5-11 of the Office of

Surface Mining - Federal Assistance Manual (FAM)

• NEPA Terminology• Topical Index• OSM Reg 31

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ReferencesNEPA Procedures Course Handouts

• Forty Questions• Federal Register Notice NEPA

Implementing Procedures• OSM 181 – CED• Selected Laws and executive Orders• Farmland Protection Policy Act• Notice of Availability example• FONSI example• OSM EIS’s• Appendix

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Homepage for House Resources Committee NEPA Task Force

http://resourcescommittee.house.gov/nepataskforce.htm

NEPA: What Needs Fixing, What Doesn’t, and How Would You Fix It?

http://resourcescommittee.house.gov/nepataskforce/press/eliforum_nepa2005.pdf

 Final Report Task Force on Improving NEPA

http://resourcescommittee.house.gov/nepataskforce/report/nepareport_finaldraft.pdf

 Pombo ESA Implementation Report

http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm 

Some NEPA related web sites

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Some more web sites:Modernizing NEPA Implementation, September 2003

http://ceq.eh.doe.gov/ntf/report/finalreport.pdf

Departmental Manuals

http://elips.doi.gov/app home/index.cfm?fuseaction=home

 NEPAnet CEQ Task Force

http://ceq.eh.doe.gov/nepa/nepanet.htm

 EPA – Envirofacts Data Warehouse

http://www.epa.gov/enviro/

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Some NEPA terms we will discuss

• Environmental Assessment

• Environmental Impact Statement

• Scoping – internal and public

• Impacts– Direct impacts– Indirect impacts

• Cumulative Impacts

• Impact Analysis• Jurisdictional

Wetland• Significance• Mitigation• Intensity• Context• Duration

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Some NEPA acronyms

• BO Biologic Opinion• BEBA Biological Evaluation/Biological

Assessment• CE, CX or CATEX Categorical exclusion• CEQ Council on Environmental Quality• DM Decision Memo• DNA Determination of NEPA Adequacy• EA Environmental Assessment• EIS Environmental Impact

Statement

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• EJ Environmental Justice Ex Order 12898

• ENBB Environmental Notification Bulletin Board (BLM)

• EPA Environmental Protection Agency• FONSI Finding of No Significant Impact• NOI Notice of Intent• RMP Resource Management Plan• MSO Mexican Spotted Owl• ROD Record of Decision• SHPO State Historic Preservation Office• USFWS United States Fish and Wildlife

Service

More acronyms

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Legal acronyms

• ESA– Endangered Species Act of 1973

• NHPA– National Historic Preservation Act of 1966

• FLPMA– Federal Land Policy and Management Act of

1976

• NFMA– National Forest Management Act of 1976

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More laws

• ARPA– Archeological Resources Protection Act of

1979

• NAGPRA– Native American Graves Protection and

Repatriation Act of 1990

• SIPs– State Implementation Programs

(Clean Water Act)

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Categorical Exclusions

• "Categorical Exclusion" refers to routine actions that do not individually or cumulatively have a significant effect on the human environment, and that have no such effect in procedures adopted by a Federal agency.

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Because it can save you time and effort…

The first step in the NEPA process should be:

to determine if you are covered by a Categorical Exclusion (also called a CE, CX or Cat Ex).

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Two major points about categorical exclusions:

1. CE’s are granted for actions that are routine and DO NOT have a significant effect on the human environment...NOT because it would make an action, even an essential action, more expedient.

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2. The action must fit the formal Categorical Exclusion definition criteria declared by the agency.

The list of allowable CE’s for OSM (and

recipients of their grants) is found in Appendix 8 of the DOI's Manual on NEPA Compliance.

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When have you used a categorical exclusion?

• Refer to 516 DM 6, Appendix 8, Section 8.4 (Categorical Exclusions)

• Think about some of the routine activities you do, and whether you think an environmental analysis would be a useful exercise.

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Categorical Exclusion Determination

• If the proposed action is meets the criteria for a categorical exclusion, a categorical exclusion determination (CED) is prepared, and included in the administrative record of the originating office.

• Authority for approving a CED rests with the Field Office Director for field office actions.

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If the proposed action does not fit the definition for a CE, an EA must be prepared.

• Exception: If the proposed action normally requires an EIS.

• Actions that normally require an EIS are in Appendix 8, Section 8.3.

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Environmental Assessment

A concise public document that a Federal agency prepares under the National Environmental Policy Act (NEPA) to provide sufficient evidence and analysis to determine whether a proposed agency action would require preparation of an environmental impact statement (EIS) or a finding of no significant impact (FONSI).

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Environmental Assessment

EA’s must provide enough information so the decisionmaker can determine whether to issue a:

• 1. NOI – Notice of Intent to Write an Environmental Impact Statement, or a

• 2. FONSI – a Finding of No Significant Impact.

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An EA must analyze all realistic alternatives under consideration.

• Do not dream up alternatives to “fatten up” the document.

• 90% percent of the EA’s OSM typically reviews only have the “no action” and the “preferred alternative.”

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Environmental assessments must include at the minimum the "no action" alternative and the preferred alternative.

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States and Tribes should include discussions of all other potentially viable alternatives.

• For States/Tribes conducting water supply system construction or replacement - “at source” abatement should be one alternative.

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When preparing an EA you must:

• Define the proposed action and the alternatives.

• Assemble relevant information, baseline data and existing reports and studies.

• Describe the current environment.• Evaluate the potential impacts.• Determine cumulative impacts.• Document that clearances have been

received.

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Sections of an EA or EISSection A or Chapter 1 - IntroductionSection B or Chapter 2 - Proposed Action and

AlternativesSection C or Chapter 3 - Affected EnvironmentSection D or Chapter 4 - Environmental

ConsequencesSection E or Chapter 5 - Consultation and

CoordinationSection E or Chapter 6 - List of PreparersSection F or Chapter 7 - References

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“Clearances”

Two are ALWAYS required:

1. SHPO letter NHPA Section 106 compliance 2. USFWS letter Section 7, informal or formal

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As the EA preparer, YOU must independently review the appropriateness, and validity of any information you include in the EA.

Its your responsibility to produce a “good” environmental document.

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The decision maker (OSM) uses the EA to determine whether to issue a:

• FONSI Finding of No Significant Impact,

or

• NOI – Notification of Intent to write an Environmental Impact

Statement.

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A FONSI is the expected result for all normal AML situations.

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FONSI

• A FONSI can only be prepared by a federal agency. It briefly presents the reasons why an action, not otherwise excluded, would not have a significant impact on the human environment.

• A FONSI format is provided in OSM NEPA Handbook, Attachment 2.4, and in the Federal Assistance Manual, Chapter 5-11.

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FONSI’s include:

• The environmental assessment, or a summary of it.

• A listing of other environmental documents related to it.

• The reasons the conclusions of non-significance were reached.

• Who prepared and approved the document.

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The OSM Field Office Director normally approves all FONSI's for that field office’s actions.

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Who normally signs the FONSI for your office?

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Notice of Intent• A Notice of Intent (NOI) means an environmental

impact statement will be prepared and considered. NOI’s include the following information:– A description of the proposed action and

possible alternatives.– A description of the agency's scoping process

including the time and location of any scoping meeting.

– The name and address of a person within the agency who can answer questions about the proposed action and the environmental impact statement.

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NOI

• Notice of Intent to write an Environmental

Impact Statement (EIS)

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NOI’s can only be approved by the OSM Assistant Director for Field Operations.

• NOI’s are prepared in Washington DC with backup information submitted by the field offices.

• In some instances Field Offices may prepare the document, but signature authority remains in Washington.

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Environmental Impact Statement

An Environmental Impact Statement (EIS) is a detailed written statement required by Section 102(2)(C) of the National Environmental Policy Act.

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Environmental Impact Statement

• NEPA requires that EIS’s include:– The environmental impact of the proposed action.– Any adverse environmental effects which cannot

be avoided should the proposal be implemented.– Alternatives to the proposed action.– The relationship between local short-term uses of

man's environment and the maintenance and enhancement of long term productivity.

– Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

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Normally an EIS should consider at least 3 alternatives:

• Three types of actions• Three types of alternatives• Three types of impacts.

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Only OSM can prepare or act as a cooperating agency on an

environmental impact statement.

• Only the Director of OSM can sign and approve an EIS.

• Why do you think this approval authority rests with the OSM director?– Take large amount of time.– Take even larger amounts of money

(budget).

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States and Tribes can be delegated the authority to act on OSM’s behalf in a cooperative interagency effort, but OSM remains the responsible party.

Federal to federal action

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Programatic EIS’s are general documents that discuss impacts agency-wide or at the national level.

• 1500.4 Reducing Paperwork– Advises federal agencies to reduce

paperwork by: “Using program, policy, or plan environmental impact statements and tiering from statements of broad scope to those of narrower scope to eliminate repetitive discussions of the same issues.”

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Programmatic EIS

• A broad environmental impact statement prepared for a program or policy statement that assesses actions included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement, and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action.

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OSM Programmatic EIS’s

• OSM-2– First AML EIS.– Dealt primarily with the allocation of

grant funds. • OSM-11

– Second AML EIS.– Dealt with the environmental

consequences of specific project types nationally and regionally.

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Tiering

– Incorporates information in existing EIS’s or EA’s by reference.

– Tiering goes from the general to the specific.

– The EA or EIS must be site specific – you must provide sufficient discussion to relate the more general document to your specific project or site.

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NEPA terms

• Your FTE can’t find the RFP or the NEPA DNA for the BLM or the FONSI for the USFS, and the USACE requires an EIS.

• A brief explanation of these terms when dealing with the public (or other professionals) will greatly enhance your ability to communicate.

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Cumulative Impact

• The impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

• Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

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Why is the Cumulative Impact Analysis so important?

• A large percentage of successful challenges to EA’s and EIS’s are based on inadequate cumulative impact analysis.

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The cumulative impact analysis should consider if the proposed action is:• Time crowded - the events would be

scheduled so close in time that the system can't recover;

• Space crowded - the events would overlap in space or location or are so close that their impacts cannot not dissipate; or

• Multiplicative or synergistic - several different proposed events together become more problematic than they would be if occurring separately.

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Cumulative impact projections are usually based on:

• Judgment (art) - generally not a scientific analysis; you are asked to predict reasonably foreseeable outcomes.

• The landscape scale - generally a naturally occurring unit, a watershed for example.

• Adjusting the timing - mitigation of cumulative impacts can be accomplished by staggering the events which can negate the synergistic effects of cumulative impacts.

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What are some examples of cumulative impacts caused by reclamation activities or projects?

• Impacts to deer or elk herd• Traffic• Noise• Activity

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Mitigation - a NEPA word

• Mitigate - to cause to become less harsh or hostile.

• Mitigation in NEPA includes the following concepts:

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MitigationNEPA defines mitigation as action taken to avoid, reduce the severity of, or eliminate an adverse impact. Mitigation can include one or more of the following: Avoiding impacts; Minimizing impacts by limiting the degree or magnitude of an action; Rectifying impacts by restoring, rehabilitating, or repairing the affected environment; Reducing or eliminating impacts over time; and Compensating for the impact by replacing or providing substitute resources or environments to offset the loss.

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Compensatory mitigation is not favored because:

– Compensatory mitigation sometimes never actually happens, people are leery.

– Environment created, restored or enhanced for compensatory mitigation is perceived to be "artificial" and incapable of replacing lost environmental values.

– Cash payment in lieu of actual environmental creation, restoration or enhancement is often equated with "buying off" concerns.

– If project impacts can be minimized in other ways, then consider compensatory mitigation as a last resort.

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What are some ways compensatory mitigation can be used in AML programs?

• Fund cultural/historic projects.

• Fund/construct wildlife enhancements.

• Fund cooperative community projects such as parks.

• Others?

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Scoping

• Scope refers to the range of actions, alternatives, and impacts to be considered in an environmental impact statement or an environmental assessment.

• Formal Scoping is the process of determining the extent of an EIS and is defined by CEQ.

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Scoping means public participation.

• Making the public aware of the proposed project– Timing, budget, schedule.

• Making other land managing agency officials aware of the proposed project.

• Making political officials such as mayors, county commissioners, state and federal legislators aware of the project.

• Asking for public input.

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SIGNIFICANCE

• Determining significance (as used in NEPA) requires the consideration of three factors.– Context– Intensity– Duration

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CONTEXT

• Context means the action must be analyzed at several levels.– Society as a whole,– The affected region,– The affected interests,– The locality.

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INTENSITY

• Intensity refers to the severity of the impact. • For OSM related work, severity can be

defined using the the following terms:– Negligible or trace - at lower levels of detection.– Minor - detectable, but slight.– Moderate - readily apparent environmental

impact.– Potential to become major - potentially severe

adverse impact.– Major - severe adverse impact.

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What are examples of different intensity levels you can expect in AML reclamation projects?

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DURATION

• Duration refers to how long the impact is expected to last.

• Short term - generally the life of the project.

• Long term - generally lasts longer than the life of the project.

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Use these terms to describe project impacts in your exercise.

The reclamation of the Kesterville Refuse Pile would have a short term, minor, and site specific impact on soil resources.– The project would take 12 weeks to complete.

During this time silt fences and straw bales would be used to prevent sediment from leaving the site. Fugitive dust would be controlled by use of a water truck. Minor compaction that could occur under temporary equipment routes would be remedied by ripping prior to placement of top soil.

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SIGNIFICANCE• Significance varies with the setting of the

proposed action. Generally significance should apply to a site specific action and look at the potential effects in the locale rather than in the world as a whole.

• Do not use the word SIGNIFICANT unless it is absolutely necessary!

• Consider words such as major, considerable, important, sizeable, substantial, etc.

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Analysis of Impacts

• For reclamation projects you must show you have considered all the potential impacts that could be caused by the proposed action and that you have have incorporated all necessary mitigation or protection measures needed to protect the environment into the project design.

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OSM Programmatic EIS

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Classroom Exercise

• Look at the exercise sheet dealing with documents and terminology.

• Situation: Your new supervisor has been to a meeting and is clueless about a NEPA discussion and questions he was asked.

• You must prepare a briefing for your new boss.– Select a spokesperson to present it to

the class.– Use the concepts we have discussed

up until now in class.