NEPA - Writing Environmental Assessments, Part 3

River Management SocietyDenver, Colorado April 17, 2014

1

Chapter 4 Chapter 4 Environmental Environmental ConsequencesConsequences

Alternative A

AirDirect/indirectCumulative

Alternative B

AirDirect/indirectCumulative

Air

Methods of analysis

Alternative ADirect/indirectCumulative

Alternative BDirect/indirectCumulative

Water

Methods of analysis

Alternative A

Methods of analysis 2

Chapter 4 Environmental Consequences

• CEQ § 1502.16

• Introduction explaining this chapter describes impact levels to each relevant resource

• Discuss the following types of impacts:• Direct, indirect, and cumulative• Short- and long-term• Irreversible and irretrievable

• Explain the methods used to predict potential impacts and measurement indicators used

3

Chapter 4 -Environmental Consequences

• Describe impacts to resources/communities • Timeframe used to determine impacts for each resource• Discuss geographical boundaries used for each resource

• Describe the point to which the impacts are no longer measurable

• “The choice of analysis scale must represent a reasoned decision and cannot be arbitrary”

• Idaho Sporting Cong., Inc. v. Rittenhouse (9th Cir. 2002)

4

Chapter 4 -Environmental Consequences

• Information must clearly support conclusions made.• Show the cause-and-effect reasoning leading to conclusions• If X occurs then we can expect Y to occur which results in Z

• A conclusionary statement unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind not only fails to crystallize issues, but affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.

• (Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973) 5

Northern Plains Resource Council, Inc. v. Surface Transportation Board, F.3d (9th Cir.2011)

(Lowswartz, Linda. Summary of 2011 NEPA Cases)

• As a preliminary matter, the court stated that “[w]hile we afford deference to the judgment and expertise of the agency, the agency must, at a minimum, support its conclusions with studies that the agency deems reliable. Lands Council, 537 F.3d at 994. The agency must ‘explain the conclusions it has drawn from its chosen methodology, and the reasons it considered the underlying evidence to be reliable.’ Id. The agency will have acted arbitrarily and capriciously when ‘the record plainly demonstrates that [the agency] made a clear error in judgment in concluding that a project meets the requirements’ of NEPA.”

6

Chapter 4 -Environmental Consequences

• Predict change from existing condition (quantify)• Specify activities that would cause change• Specify location of the activity• Specify the location of impact• Specify timing of activity• Specify timing of impact

7

Defining Significance• CEQ § 1508.27 Significantly.• Context …action must be analyzed in several context such a society

as a whole, the affected region, the affected interest, and the locality.

• Intensity • Beneficial and adverse impacts• Affects to public health and safety• Unique characteristics of the geographic area• Controversy• Uncertain or unknown risks• Setting precedent• Cumulatively significant impacts• Affects to our cultural or historic resources• Affects to endangered species• Violates other federal or state laws 8

Determining Significance• Determine if the action:

• Substantially changes to the resource or community• Has a material bearing on the decision.• Are impacts beneficial or adverse.

• Determine thresholds of significance:• Federal policy or laws (CWA, CAA, ESA)• Science (water temps and oxygen levels)• Decision-maker’s opinion (education, politics, public pressure,

personal beliefs)

9

Chapter 4 Environmental Consequences• CEQ §1502.22 Incomplete and Unavailable Information• If essential to a reasoned choice among alternatives and the

overall cost of obtaining it are not exorbitant, include the information.

• If the information cannot be obtained because the cost of obtaining it are exorbitant or the means to obtain it are not known, the agency must include:• A statement the information is incomplete or unavailable.• A statement explaining the relevance of the information.• A summary of the existing credible scientific information that is

available and relevant.• The agency’s best estimation of the impacts without the

information.10

Exercise 5• Review EA ~ Chapter 4

• Environmental Consequences • Did the agency clearly explain the impacts to each resource?• What measurement indicators were used to quantify the

impacts?• Did they define the terms used to describe the impacts (e.g.,

short-term and long-term)?• What thresholds were used to determine significance?• Did they define their methods for predicting impacts

11

Role of Mitigation• CEQ § 1508.20• Mitigation measures can be used to reduce impacts from

significant to less-than-significant.• Mitigation must be evaluated as part of the alternative – not

simply listed

12

Role of Mitigation• Statements that agencies often try to pass off as mitigation,

but usually are not:• Consult with…• Submit for review…• Coordinate with…• Study further…• Inform…• Encourage/discourage…• Facilitate…• Strive to…

(Bass, Heron and Bogdan, The NEPA Book, 2001 edition)

13

Role of Mitigation

• Statements that are questionable whether they are mitigation measures:

• Provide funding for…• Hire staff…• Monitor or report…• Comply with existing regulations…• Preserve already existing natural sites…

(Bass, Heron and Bogdon, The NEPA Book, 2001 edition)14

Role of Mitigation• Consider the following when determining appropriate

mitigation measures:

• Economics• Logistics• Legality• Social acceptance

environmental.fhwa.dot.gov

(Bass, Heron and Bogdon, The NEPA Book, 2001 edition)15

Role of Mitigation

• Other agencies may impose mandatory mitigation measures before a project can proceed:

• USFWS ~ Endangered species issues• ACE ~ wetlands issues• EPA ~ water or air quality issues

16

Role of Mitigation• Although NEPA requires agencies to discuss mitigation

measures in their documents, it does not require them to adopt the measures

• Unless…• Reduces the impacts to less-than-significant in an EA/FONSI• Agency commits to them in an ROD or FONSI

17

Role of Monitoring• CEQ § 1505.3• 3 categories of monitoring

• Implementation monitoring: ensures decisions are carried out as described in the EIS/EA and ROD/FONSI

• Effectiveness monitoring: determines if mitigation is working as predicted and meeting objectives

• Validation monitoring: reviews the analytical assumptions used during the NEPA process ~ data intensive and involves research

18

Relationship Between DisclosureRelationship Between DisclosureDocuments and Decision DocumentsDocuments and Decision Documents

Disclosure Decision Documents Documents

DEIS/FEIS ROD

EA FONSI

Significant

Threshold

Categorical Exclusion(CATEX, CX, CE) 19

Mitigated FONSIMitigated FONSI

Impacts may be significant

EISFONSI

Mitigation designed to reduce impacts below significance

20

Mitigated FONSIMitigated FONSI

In order to use a mitigated FONSI

Mitigation must be known to be effective

Mitigation must be binding on the agency

21

Finding of No Significant Impact FONSI

• Identifies the chosen alternative• State when the action will be implemented• Succinctly state the reason for deciding the action will not

have significant impacts ~ show factors which weighed most heavily in the determination (i.e., which issues or resources were most likely to have a significant impact)

• Include the EA with the FONSI so information supporting conclusions is readably available• CEQ § 1508.13• Forty Most Asked Questions (37a and 37b)

22

Finding of No Significant Impact - FONSI• Copy must be provided to whomever the agency knows or

believes is interested in the action.• All mitigation and monitoring included in the FONSI are

enforceable commitments• Before the FONSI is signed and the action implemented allow

sufficient time for review (usually 30 days)

23

Finding of No Significant ImpactFONSI08.27 (“10 points of significance”)

A FONSI presents EVIDENCE that leads to individual conclusions about significance factors and draws a concluding finding encompassing all factors.

24

Finding of No Significant Impact - FONSI

• 30 days required for the following situations:• Court Rulings• The finding is borderline (reasonable argument for an EIS)• Scientific or public controversy over the proposal

• CEQ §1501.4 • The nature of the action is without precedent • Is an action that is or closely resembles an action that normally

requires preparation of an EIS

25

Exercise 6• Review the FONSI

• Does it convince you of the no significant impact finding?• Does it tie back to the issues or resources that had the

potential for significant impacts• Are there any suggestions you have for improving it?

26

Analysis File• Documents the information used to develop the EA/EIS and

decision by the agency

• Contains all supporting information for the EA/EIS

• Reviewed by the court and public when a document is challenged

• Must be well organized

27

Analysis File• Establish the file the first day of the NEPA process• Organize documents chronologically• Date and identify each item as it’s received and put in file• Keep clean, original copies in the file• Keep an index of what is in the file• Discard non-relevant items or duplicates• Should be frozen when FONSI or ROD is signed• Keep file (at minimum) until action is completed (or the policy

of your base)

28

Summary• Environmental consequences

• Direct• Indirect• Cumulative

• Mitigation• Monitoring• Finding of No Significant Effect• Analysis File

29

Questions/comments

30