7 CFR 1794 - RUS ENVIRONMENTAL POLICIES AND PROCEDURES

Processing of Environmental Reviews

for Water and Waste Projects

National Environmental Policy Act of 1969 (NEPA)

• Purpose: – When a Federal Action is purposed, decisions shall be based on an

understanding of the environmental consequences of the action. – Review the environmental impact of the purposed action, – Integrate with other agencies/organizations and involve the

public, – Adverse affects that can’t be avoided, – Reasonable and practical alternatives to the purposed action, – Any mitigation measures necessary to avoid or minimize adverse

environmental effects, – Resources are protected by other environmental laws and

regulations, considered concurrently with NEPA.

Therefore: What is the Federal Action being implemented?

RUS Bulletin 1794A-602• Purpose:

– When applying for financial assistance from Rural Development, applicants may be required to submit an Environmental Report (ER) to support the Agency’s environmental review process as required by NEPA.

– This bulletin provides guidance on preparing the environmental report;

• NEPA and related RUS procedures • Format of the ER • Environmental information requirements and sources • Preparing agency correspondence • Preparing public notices, and … • Has sample correspondence and notices, processing flow

charts, mitigation examples, laws

7 CFR 1794 – Classifications• Categorical Exclusion without an Environmental Report

– Issuance of Bulletins and information publications that do not concern environmental matters or facility design, construction, maintenance,

– Personnel, administrative, managerial (invitation for bids, award of contracts),

– Purchase of land where use shall remain unchanged, – Additional financial assistance for a project where scope is

unchanged, – SCADA and energy management with no external construction, – Testing, monitoring, and/or purchase of office equipment or

vehicles, – Studies and engineering undertaken to define proposed actions

or alternatives. Planning, environmental review, design.

• Categorical Exclusion with an Environmental Report

– Rehabilitation of existing facilities, functional replacement or rehabilitation of equipment, or the construction of new ancillary facilities adjacent or appurtenant to existing facilities. Including but not limited to utilities such as water or sewer lines and appurtenances for existing users with modest or moderate growth potential. Reconstruction of curbs, sidewalks, street paving, building modifications, renovations and improvement,

– Facility improvements to meet current needs with a modest change in use, size, capacity, purpose or location from the original facility. Predominantly residential use, other new or expanded being small scale commercial,

– The extension, enlargement or construction of interceptors, collection, transmission or distribution lines within a one-mile limit from the existing service areas,

– Installation of new water supply wells or water storage facilities that are required by a regulatory authority or standard engineering practice (fire protection).

• Environmental Assessment with an Environmental Report:

– An Environmental Assessment must be prepared if a proposed action normally classified as a Categorical Exclusion meets any of the following;

• Will either create new or relocate an existing discharge to or a withdrawal from surface or ground waters,

• Will result in substantial increases in the volume or the loading of pollutants from an existing discharge to receiving waters,

• Will cause a substantial increase in the volume of withdrawal from surface or ground waters at an existing site,

• Would provide capacity to serve more than 500 EDUs or a 30 percent increase to the existing population.

– Preparation of a Environment Assessment is required for proposed actions that are neither categorical exclusions or Environmental Impact Statements (EIS).

• Environmental Impact Statement with an Environmental Report

• Larger projects that are beyond the scale of a Categorical Exclusion;

• Reservoirs, Landfills, New treatment plants, • Not common for RUS projects, will be implemented by

working with the National Office.

Applicant & RUS Responsibilities §1794.10

– Applicants shall prepare environmental

documentation concurrent with engineering

planning and design activities

– RUS shall assist by providing an outline of types

of information required and provide guidance

and oversight in the development of the

documentation

RUS Bulletin 1794A-602 - Introduction

• Introduction - Covers NEPA and Agency requirements • The Environmental Report should aim to:

– Minimize repetition and inclusion of extraneous information, – Minimize long narratives; prefer bulleted lists, summary tables, – Emphasize use of maps: USGS quad sheets, Soil Surveys, FEMA

FIRMs, – PER and the ER are preformed concurrently, – Public Involvement, may have to issue public notices – Environmental Report is used to support the agency’s decision – Various sources of information

RUS Bulletin 1794A-602 - Format• 1.0 Purpose and Need for the Project:

– 1.1 Project Description (Proposed Action) – 1.2 Purpose and need for the project

• 2.0 Alternatives of the Proposed Action: – Engineering design alternatives, – Alternative siting locations, – System capacities, reasonable growth concerns, etc.

RUS Bulletin 1794A-602 - Format• 3.0 Environmental Information and Requirements

– Describe the area under consideration, – Describe and document the environmental resources of the area to

be affected by the proposal for each economically feasible alternative,

– Discuss the environmental effects or consequences of the proposal and each reasonable alternative considered. Adverse and beneficial effects,

– Identify potential mitigation measures that may be necessary to avoid or minimize adverse effects caused by the proposal. Any and all mitigation measures need to be negotiated and concurred with the appropriate environmental regulatory or natural resource agency,

RUS Bulletin 1794A-602 - Format• 3.0 Environmental Information and Requirements (continued)

– Provide a more detail on the following environmental resources; • Land Use/Important Farm Land • Floodplains • Wetlands • Historic Properties • Biological Resources • Water Quality Issues • Coastal Resources • Socio-Economic Issues • Miscellaneous Issues

– Arrange in sub chapters; • 3.1 Land Use

– 3.1.1 Affected Environment – 3.1.2 Environmental Consequences – 3.1.3 Mitigation Measures

RUS Bulletin 1794A-602 - Format• 4.0 Summary of Mitigation Measures

– Provide a summary of mitigation measures described in section 3.0.

• 5.0 Correspondence and Coordination – Provide and include all records of correspondence as required.

• Document data gathering; use of websites becoming more prevalent • Document agency determinations and applicant responses • Major source of support for agency impact conclusions • Resolve all outstanding issues

• 6.0 Exhibits – Supporting documents, studies, field investigations, maps,

photographs, etc. Public Notices • 7.0 List of Preparers

– List the names of all preparers of the report, including titles, affiliations and areas of input.

More on Public Notices Environmental Reviews

• If necessary, Preliminary and Final notices if there are potential effects to important resources (Important Farmland, Floodplains, wetlands, or adverse cultural resources; 30-day review

Environmental Assessments • Notice of Availability (including Preliminary Notice

language if necessary); 30-day review • FONSI (including Final Notice language if necessary);

normally no review period; if substantive comments received and EA is changed significantly, may require additional 15-day comment period.

LAND USE• Narrative description and maps • Existing zoning ordinances and land use plans, • Total land use required and amount of land that will be disturbed by

construction, classification of land, • Properties in close proximity that will likely be directly affected by the

action,

• Important Farmlands • Identify areas and amount to be disturbed, • Include a discussion concerning affects and alternative available, where

there is a direct and potential indirect conversion of important farmlands, • Land Evaluation Site Assessment working with NRCS, (AD-1006), • Hawaii’s Important Agricultural Lands, • Web soil survey maps, NRCS, • Formally Classified Lands, National Parks, historic site, wilderness areas.

FLOODPLAINS

• Avoid long and short-term adverse impacts associated with occupancy and modification of floodplain,

• 100-year flood or 500-year for critical facilities (water treatment plants, wastewater facilities, large pump stations, centralized/communications operations),

• Determine if located in the floodplain, Elevation Certificate and FEMA flood maps, FEMA firmette,

• Alternative Analysis is required if proposed to be in the floodplain, • National Flood Insurance Program (NFIP), participation is required,

Zone X shaded 500-year floodplain

Where to obtain FEMA Firmette

http://www.msc.fema.gov

or Enter site address

Product Catalog

Step by Step guide to making Firmette’s is at end of

presentation.

Floodplain Impact Alternatives Analysis (1940-G and 1794) also referred to as 8-step Process (EO 11988)

Required if new construction, or substantial improvement to or purchase of existing structures is proposed in floodplain. The applicant is responsible for providing sufficient information for RD to make an informed decision regarding the proposal.

Substantial Improvement -the cost of work being funded equals or exceeds 50% of the market value of the building (does not include land costs or health

and safety repairs). If a rehab only proposal, not a substantial improvement.

1. Determine if proposed action is located in the Base (100-year) floodplain (or 500-year for critical actions)

2. Early Public Notice (For 1940-G, Preliminary Notice, if applicable), Private Party Notice to applicant

3. Identify and evaluate alternatives to locating in the base floodplain (RD cannot approve if there is a practicable alternative).

4. Identify impacts of proposed action5. Minimize, mitigate, restore, preserve6. Re-evaluate alternatives 7. Findings and Public Explanation (Final Notification, if applicable)8. Implement the action (with appropriate mitigation measures)

Floodplain Impact Alternatives Analysis

WETLANDSAvoid undertaking or providing financial assistance for new construction located in wetlands….

Regulatory Overview •Clean Water Act (CWA) - Sections 404 and 401 •Executive Order (EO) 11990, “Wetlands” •USDA DR 9500-3 “Land Use Policy” •Consolidated Farm and Rural Development Act •1940-G Exhibit C

All of the above require an Alternatives Analysis to be completed prior to authorization of wetland impact. The Alternatives analysis must document: •There is no practicable alternative present to the proposed wetland impact which would have a less adverse impact and meet the purpose and need of the proposal. •If a practicable alternative exists it must be implemented. •If there are wetland impacts mitigation is required. •U.S. Army Corps of Engineers Permits

What is the ConAct?• The ConAct is the Consolidated Farm and Rural Development Act and S. 363 prohibits

wetland impact for the following programs:• CF Direct and Guaranteed Loans • Water & Waste Disposal Direct & Guaranteed Loans• Water, Wastewater & Essential CF Loans• Business and Industry Direct and Guaranteed Loan• Rural Transportation (RBEG earmarks and/or set asides)• Intermediary Relending Program• The ConAct S. 363 will not allow you to fill or manipulate a wetland under

these programs.

Exemptions: 1) Utility or water lines are not subject to the ConAct therefore the agency may allow

wetland impacts for these programs.2) Prior converted wetlands (as defined by NRCS converted before 1985)

Tools for Wetland Identification for RD Construction Proposals

• NRCS Soil Survey websoil survey (http://websoilsurvey.nrcs.usda.gov/app)– Soil Surveys show mapped hydric soils – Review for presence of hydric soils or

hydric soil inclusions. If they exist, a site visit should be made. Soil Survey Maps are more reliable than NWI maps for specific projects, but not meant to delineate small wetland areas.

• USFWS National Wetland Inventory Maps - Wetlands Mapper (http://www.fws.gov/wetlands/Data/Mapper.html ) – Database developed to identify wetlands that exist on large land tracts (1 to 5 acres of land), not useful for detailed site investigations involving construction.

• Private Environmental Consultants Perform Delineation according to USACE 1987 Wetlands Delineation Manual (http://www.wetlands.com/regs/tlpge02e.htm ) A biologist marks (delineates) wetland areas with flags according to the USACE 1987 Delineation Manual.

HISTORIC PROPERTIESTake into account the effect of the action regarding historic properties, Identify the “Area of Potential Effect” APE National Register of Historic Places

• When is Section 106 review required?

When: • there is an “undertaking”…… (financial assistance) • ….with the “potential to cause effects” to historic properties, assuming such properties were present

Consulting PartyRoles and Responsibilities

• RD Applicants– Gather needed information – Prepare analyses, recommendations, studies and documents– May be authorized to initiate Section 106 review

• State Historic Preservation Office (SHPO)– Advisory only– Provides expert opinion

• Indian Tribes and Native Hawaiian Organizations– Advisory but………….– Must participate under certain circumstances

How much study is enough?• Apply “reasonable and good faith effort” regulatory

standard [36 CFR § 800.4(b)(1)]

• Applicable factors include:– Past studies– Magnitude and nature of undertaking– Degree of Federal involvement– Nature and extent of potential effects– Likely nature and location of historic properties– Applicable standards and guidelines– Confidentiality concerns– Costs– Public benefit

Make A DecisionFINDING OF NO HISTORIC PROPERTIES AFFECTED • No historic properties found in the APE• Historic properties found in the APE, BUT there will be no

alteration to the property’s qualifying characteristics OR FINDING OF HISTORIC PROPERTIES AFFECTED • Historic properties found in the APE which may be affected

– Continue consultation – Proceed to next step - Assess effects [36 CFR § 800.5]

BIOLOGICAL RESOURCESThreatened and Endangered Species, or Critical Habitat Requires Section 7 consultation under the Endangered Species Act

Section 7 Provisions

!Action: ▪Anything funded, authorized, or

carried out by Rural Development

Section 7 Provisions !Section 7(a)(2): ▪ RD shall consult with the U.S. Fish &

Wildlife Service and/or National Marine Fisheries Service,

▪ RD must ensure that any action: • Is not likely to jeopardize the continued

existence of any listed species • Does not result in the destruction or adverse

modification of designated critical habitat

Informal Consultation!Allows RD and Applicant to:

▪ Discuss potential effects of proposed action

▪ Seek technical assistance

▪ Identify listed species

Informal Consultation

▪ Explore ways to modify the action to reduce/remove adverse effects

▪ Conclude process upon concurrence of “no effect” or “not likely to adversely affect” finding or when RD initiates formal consultation (in writing)

Possible Determinations!“No Effect”

– No effect whatsoever – No further consultation required

!“May Affect, Not Likely to Adversely Affect” – Insignificant or discountable effects – Requires concurrence from FWS/NMFS

!“May Affect, Likely to Adversely Affect” – Risk of a “take” – Requires formal consultation with FWS/NMFS

“How To”! Visit Service ES or area office website, or use ECOS on-line tool (http://

ecos.fws.gov/ecos/indexPublic.do); also http://ecos.fws.gov/ipac/faqs.jsp

! Before initiating project Applicant/RD requests T/E, candidate species and critical habitats listing identifying those species that may be present in project area. If FWS/NMFS indicate none, consultation complete

! If species present, RD must determine whether project has no effect, is not likely to adversely affect, or is likely to adversely affect (Biological Assessment, if necessary)

! If “no effect” or “not likely to adversely affect”, and FWS/NMFS concur, consultation complete

! If adversely affected, RD must undergo formal consultation with FWS/NMFS

“How To” (Formal consultation)!Biological Assessment completed, reviewed and

submitted to FWS

!RD submits initiation package

!Concludes 90 days after initiation

!FWS/NMFS issues Biological Opinion within 45 days of concluding formal consultation

WATER QUALITY•Wastewater treatment discharges •Surface or ground water appropriations for potable water treatment facilities•Ground water protection programs•Sole Source Aquifers and recharge areas•Temporary construction activities•Impact to wetlands, wildlife and environment

•Gather Information: Location of waterways or effluent discharges, handling, aquifers, watershed management plans, construction best management practices.

•National Pollutant Discharge Elimination System (NPDES) – 1 acre of disturbance for water runoff•Ground Water Protection Programs/Sole Source Aquifers•State Agencies

COASTAL RESOURCES

SOCIO-ECONOMIC ISSUES• Potential to affect the socio-economic conditions of the areas being served.

• Applicants shall be award of the socio-economic conditions, and document concerns if effects will be adverse.

• Determine if the proposal has or may have a disproportionately high and adverse human health or environmental effect on minority and low-income populations.

E.O. 12898 “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”

• Analyze for potential adverse effects,

• Provide opportunities for minority and low-income populations to participate, in review process if adversely affected.

• Identify mitigation measures that would reduce the adverse effect.

MISCELLANEOUS ISSUES

• Any other site specific issues that may arise.

• Air Quality• Noise• Transportation