63 3 NEPA Streamlining Provisions Critics have sometimes charged that the National Environmental Policy Act (NEPA) is an inefcient process. Inefciency is not indigenous to NEPA. To the contrary, the root causes of any inefciency lie principally with the approaches used and lack of, or failure to adopt, effective tools, techniques, and approaches for implementing NEPA’s requirements. In drafting the NEPA regulations (Regulations), the Council on Environmental Quality (CEQ) placed considerable emphasis on providing direction and methods for promoting efciency (see Chapter 2). Yet, experience clearly indicates that much of this direction often goes unheeded. In the zest to prepare bullet-proof documents, insufcient attention is often given to guidance pertaining to efciency. This chapter presents a systematic description of CEQ requirements, which provides direction for efciently implementing the NEPA process. Of special interest is a streamlining procedure (interim action provision) described toward the end of this chapter, which allows some actions to proceed in advance of completing NEPA. 3.1 MANAGING, ANALYZING, AND PREPARING NEPA DOCUMENTS Regulatory direction for streamlining NEPA is categorized in the following three tables: Table 3.1: efciency in managing NEPA Table 3.2: efciency in performing the environmental analysis Table 3.3: efciency in preparing environmental assessments (EAs) and environmental impact statements (EISs) The primary source of regulatory direction on promoting efciency is contained in sections § 1500.4 (reducing paperwork) and § 1500.5 (reducing delay). Inspection of Table 3.1 indicates many of these efciency themes recur throughout the Regulations. Two of the most notable efciency cita- tions are to Implement procedures to make the NEPA process more useful to decisionmakers and the public; to reduce paperwork and the accumulation of extraneous background data; and to emphasize real environ- mental issues and alternatives. Environmental impact statements shall be concise, clear, and to the point and shall be supported by evidence that agencies have made the necessary analysis. (§ 1500.2[b]) Integrate the requirements of NEPA with other planning and environmental review procedures required by law or agency practice so that all such procedures run concurrently rather than consecu- tively. (§ 1500.2[c]) One of the most effective tools for promoting efciency is simply to exclude a proposed action from the requirement to prepare an EIS by categorically excluding the action, or issuing a nding of no signicant impact (FONSI) for the action. • • • • • CRC_7559_CH003.indd 63CRC_7559_CH003.indd 63 1/31/2008 4:24:11 PM1/31/2008 4:24:11 PM © 2008 by Taylor & Francis Group, LLC 64 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 3.1 Provisions for Promoting Efficiency in Managing the NEPA Process Apply NEPA Early in the Process (§ 1501.2) (b) Concurrent circulation and review (d) Provide for actions by non-federal applications (d) Earliest possible time (also see § 1501.6[b][1], § 1502.5) Reducing Delay (§ 1500.5) (a) Integrating NEPA into early planning (§ 1501.1, § 1501.2) (b) Inter-agency cooperation (§ 1501.6) (c) Swift resolution of agency disputes (§ 1501.5) (d) Early scoping of real issues (§ 1501.7) (e) Time limits (§ 1501.1[e], § 1501.7[b][2], § 1501.8) (f) Early preparation (§ 1502.5) (h) Eliminating duplication with other agency review (§ 1506.3) ( j ) Accelerated procedures for legislation (§ 1506.8) (k) Using categorical exclusions (§ 1508.4) (l ) Using nding of no signicant impact (§ 1508.13) NEPA Policy (§ 1500.2) (b) Make NEPA process more useful—reduce accumulation of extraneous background data (c) Integrate NEPA with other environmental planning and review … so that all such procedures run concurrently rather than consecutively Purpose of NEPA (§ 1500.1[b], [c]) (b) Concentrate on … truly signicant issues … rather than amassing needless detail (c) Better decisions—not paperwork Reducing Paperwork (§ 1500.4) (g) Use scoping … to identify signicant issues … deemphasize insignicant issues, narrowing the scope (§ 1501.7) (i ) Tiering (§ 1502.4[d], § 1502.20, § 1508.28) (k) Integrating with other environmental review (§ 1502.25) (n) Eliminating duplication with State and local procedures … adopting environmental documents … by other agencies (§ 1506.3) (p) Using categorical exclusions (§ 1508.4) (q) Using nding of no signicant impact (§ 1508.13) Purpose of Agency Planning (§ 1501.1) (a) Integrating NEPA into early planning (b) Cooperative consultation (c) Swift resolution of agency disputes (e) Time limits Cooperating Agencies (§ 1501.6) (a) The lead agency shall: (1) request the participation of each cooperating agency in the NEPA process at the earliest possible time; (2) use the environmental analysis and proposals of cooperating agencies … to the maximum extent possible … (b) Each cooperating agency shall: (1) participate in the NEPA process at the earliest possible time … Scoping (§ 1501.7) (b) As part of scoping an agency may: … (2) set time limits … (3) adopt procedures to combine its environmental assessment process with its scoping process … (4) hold an early scoping meeting which may be integrated with any other early planning meeting the agency has. Major Federal Actions Requiring the Preparation of an EIS (§ 1502.4) (d) Agencies shall as appropriate employ scoping (§ 1501.7), tiering (§ 1502.20), and other methods listed at § 1500.4 and § 1500.5 to relate broad and narrow actions and to avoid duplication and delay. Timing of EIS (§ 1502.5) … as close as possible to the time the agency is developing or presented with a proposal … early enough so that it can serve practically an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made. (Continued) CRC_7559_CH003.indd 64CRC_7559_CH003.indd 64 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC NEPA Streamlining Provisions 65 TABLE 3.1 (Continued) Provisions for Promoting Efficiency in Managing the NEPA Process Environmental Review and Consultation Requirements (§ 1502.25) (a) To the fullest extent possible agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analysis and related surveys and studies required by the Fish and Wild Coordination Act … and other environmental review laws and executive orders Interim Actions While EIS is in Progress (§ 1506.1) (a) Until an agency issues a record of decision … no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact: or (2) Limit the choice of reasonable alternatives. Elimination of Duplication with State and Local Procedures (§ 1506.2) (b) Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements. Adoption (§ 1506.3[a]) An agency may adopt a Federal draft or nal environmental impact statements or portion thereof … Coordination/Consultation Emphasizing cooperative consultation among agencies (§ 1501.1[b]) Providing for swift and fair resolution of agency disputes (§ 1501.1[c]) Cooperating Agencies (§ 1501.6) Environmental Review and Consultation (§ 1502.25) Reduce duplication with State/local Procedures (§ 1506.2[b], [c]) Concurrently/Integrated With other planning and environmental review procedures (§ 1500.2[c]) With other review and consultation requirements (§ 1500.4[k]) Integrate into early planning … to eliminate delay (§ 1501.1[a]) Integrate with other planning … to avoid delays (§ 1501.2) Circulation and review with other planning documents (§ 1501.2[b]) Integrate with other required analysis and studies (§ 1501.7[a][6]) With environmental review laws and executive orders (§ 1502.25[a]) Integrate into State and local planning processes (§ 1506.2[d]) TABLE 3.2 Provisions for Promoting Efficiency in the Environmental Analysis NEPA Policy (§ 1500.2) Purpose of NEPA (§ 1500.1) (b) Needless detail (c) Integrate with other environmental planning and review Reducing Paperwork (§ 1500.4) (b) Analytic rather than encyclopedic (g) Use scoping … to identify signicant issues … deemphasize insignicant issues … narrowing the scope (k) Integrating with other environmental review Purpose of Agency Planning (§ 1501.1) (a) Integrating NEPA into early planning (d) Early stage identication of signicant versus non-signicant issues … narrowing the scope Scoping (§ 1501.7) (a)(2) Determine scope and signicant issues to be analyzed in depth (a)(3) Identify and eliminate from detailed study the issues which are not signicant or which have been covered by prior environmental review … narrowing the discussion of these issues … to a brief presentation of why they will not have a signicant effect … or providing a reference to their coverage elsewhere (a)(6) Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analysis and studies concurrently with, and integrated with, the environmental impact statement … (Continued) CRC_7559_CH003.indd 65CRC_7559_CH003.indd 65 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC 66 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 3.2 (Continued) Provisions for Promoting Efficiency in the Environmental Analysis Purpose of EIS (§ 1502.1) Agencies shall focus on signicant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear and to the point … Environmental Review and Consultation Requirements (§ 1502.25) … agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analysis and related surveys and studies required by the Fish and Wildlife Coordination Act … and other environmental review laws and executive orders Implementation of EIS (§ 1502.2) (a) Be analytic rather than encyclopedic (b) Discuss impacts in proportion to their signicance TABLE 3.3 Provisions for Promoting Efficient Preparation of an EIS or EA Purpose of NEPA (§ 1500.1) (b) [eliminate] Needless detail Reducing Paperwork (§ 1500.4) (a) Length (§ 1502.2[c], § 1501.7[b][1], § 1502.7) (b) Analytic rather than encyclopedic (§ 1502.2[a]) (c) Briey discuss non-signicant issues (§ 1502.2[b]) (d) Plain language (§ 1502.8) (e) Clear format (§ 1502.10) (f) Emphasis on portions of the EIS useful to the public and decision-makers and reducing emphasis on background material (j) Incorporating by reference (§ 1502.21) (l) Requiring specicity of comments (§ 1503.3) (m) Circulating only the changes when minor (§ 1503.4[c]) (o) Combining documents (§ 1506.4) Reducing Delay (§ 1500.5) (i) Combining documents (§ 1506.4) Scoping (§ 1501.7) (a)(3) Identify and eliminate from detailed study the issues which are not signicant or which have been covered by prior environmental review … narrowing the discussion of these issues … to a brief presentation of why they will not have a signicant effect … or providing a reference to their coverage elsewhere (b) As part of scoping an agency may: (1) set page limits. Purpose of EIS (§ 1502.1) Focus on signicant environmental issues; Reduce paperwork; Reduce accumulation of extraneous background data; Be concise, clear … to the point Implementation of EIS (§ 1502.2) (a) … be analytic rather than encyclopedic (b) [Discuss impacts] in proportion to their signicance (c) [EISs] shall be kept concise and shall be no longer than absolutely necessary to comply with NEPA … Length should vary rst with potential environmental problems and then with project size. Page Limits of EIS (§ 1502.7) … shall normally be less than 150 pages and for proposals of unusual scope or complexity … less than 300 pages Combining Documents: (§ 1506.4) Any environmental document in compliance with NEPA may be combined with any other agency document to reduce duplication and paperwork. Affected Environment (§ 1502.15) … succinctly describe the environment … no longer than is necessary … commensurate with the importance of the impact … shall avoid useless bulk … verbose descriptions CRC_7559_CH003.indd 66CRC_7559_CH003.indd 66 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC NEPA Streamlining Provisions 67 3.1.1 INTEGRATING NEPA WITH SEPAS AND OTHER PROCESSES As just witnessed, integrating NEPA with other processes can be one of the most effective approaches for streamlining NEPA. For example, more than 25 American states have State Environmental Policy Acts (SEPAs), sometimes referred to as “little NEPAs.” 1 Some of these SEPAs have environ- mental impact assessment processes similar to that of NEPA. However, most of these processes are less comprehensive and rigorous than NEPA. In a few cases, these SEPA processes have procedural or substantive mandates exceeding that of NEPA. For example, the Massachusetts SEPA requires “a nding that all feasible measures have been taken to avoid or minimize the said impact.” 2 Similarly, the New York SEPA requires a nding that “adverse environmental effects identied in the EIS will be minimized or avoided.” 3 The California Environmental Policy Act (CEQA) also has a similar mandate. These three SEPAs go beyond NEPA in their requirement to protect the environment. 3.2 SPECIFIC STREAMLINING METHODS Specic provisions and methods that have been successfully used to streamline NEPA implementa- tion are described in the following sections. 3.2.1 USING SCOPING TO NARROW THE ANALYSIS A common NEPA litigation complaint involves failure to consider one or more signicant issues. Consequently, agencies frequently err on the side of a broader scope with a correspondingly higher degree of detail, thereby diminishing the effectiveness of provisions promoting efciency. Professional judgment must be exercised in balancing the goal of efciency with that of preparing a defensible analysis. To this end, the Regulations urge practitioners to use the scoping process to promote efciency by narrowing the scope of the analysis: Using the scoping process, not only to identify signicant environmental issues deserving of study, but also to deemphasize insignicant issues, narrowing the scope of the environmental impact statement process accordingly. (§ 1500.4[g]) Implement procedures to … reduce paperwork and the accumulation of extraneous background data. (§ 1500.2[b]) Most important, NEPA documents must concentrate on the issues that are truly signicant to the action in question rather than amassing needless detail. (§ 1500.1[b]) The Regulations further instruct agencies to Identify and eliminate from detailed study the issues which are not signicant or which have been covered by prior environmental review, narrowing the discussion of these issues in the statement to a brief presentation of why they will not have a signicant effect on the human environment or providing a reference to their coverage elsewhere. (§ 1501.7[a][3]) 3.2.2 TIERING To promote efciency by minimizing paperwork, while reducing delays, the CEQ advocates the use of tiering. 4 Specically, tiering … helps the lead agency focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe. (§ 1508.28[b]) CRC_7559_CH003.indd 67CRC_7559_CH003.indd 67 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC 68 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners The Regulations provide additional direction for implementing tiering: Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discus- sions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. (§ 1502.20) Agencies shall as appropriate employ … tiering and other methods … to relate broad and narrow actions and to avoid duplication and delay. (§ 1502.4[d]) Tiering provides a particularly useful approach for implementing a phased approach to planning, especially in programs that are large, complex and have many components. Tiering is particularly useful when it helps an agency to focus on issues “ripe for decision” and exclude from consideration issues already decided or that are not yet ripe for decision (§ 1500.4, reducing paperwork; § 1500.5, reducing delay). Tiering is appropriate when the sequence of documents is from (§ 1508.28[a], [b]) program, plan, or policy EIS to a program, plan, or policy statement or analysis of lesser scope or to a site-specic statement or analysis; or EIS on a specic action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent EIS or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues that are ripe for decision and exclude from consideration issues already decided or not yet ripe. For instance, a programmatic EIS could be prepared to evaluate a national wind energy program. The EIS could cover broad decisions that are ripe for decision during the early planning stages of the pro- gram. The programmatic analyses might focus on determining what course of action should be taken, while lower-tier analyses could focus on how such a decision should specically be implemented. 3.2.3 INCORPORATION BY REFERENCE The Regulations encourage use of incorporating information by reference as a means of reducing the size of an EIS. Under the Regulations, agencies are, in fact, mandated to incorporate existing material into the EIS if this procedure reduces the length of the EIS without impacting either the agency’s or public’s ability to review the document (§ 1506.3). This method is also appropriate for reducing the length of EAs. 5 If incorporating by reference is used, the document must cite this material and briey summa- rize its content. Referenced material must also be reasonably available for inspection by interested persons during the comment period; a common complaint has been that agencies fail to identify the location where this material may be obtained by the public. 6 3.2.4 ADOPTION To promote efciency, an agency may adopt an EIS prepared for another project or by another agency. The adopting agency may decide to adopt an entire EIS or any portion of it. The following three distinct circumstances are recognized in which an agency may adopt an EIS (§ 1506.3[a]–[c]). 7 These situations involve circumstances where an adopting agency has cooperated in the preparation of an EIS with another federal agency. The cooperating agency may adopt the EIS and issue a record of decision (ROD) without recirculating the EIS for scoping or comment; A noncooperating agency undertakes an action that is already evaluated in an existing EIS. In this case, the adopting agency must demonstrate that it has reviewed the EIS and deter- mined that it appropriately evaluates the activities that will be undertaken. • • • • CRC_7559_CH003.indd 68CRC_7559_CH003.indd 68 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC NEPA Streamlining Provisions 69 The EIS may be adopted as long as its proposed action is essentially the same as that described in the EIS. The adopting agency must recirculate the EIS, but only as a nal EIS. If the actions described in the EIS are different from those proposed by the adopting agency, the EIS must also be recirculated as a draft EIS; in such cases, the agency may adopt all or a portion of the EIS by recirculating the document as a draft and then preparing a nal EIS. The CEQ has issued guidance encouraging agencies to use the adoption process for EAs as well as EISs. Agencies are responsible for ensuring that the scope and content of an existing EA adequately covers the proposed action. 8 Since EISs are generally expected to be site specic and the signicance of an impact depends on its context, the adopting agency is responsible for reviewing and verifying that the adopted analysis adequately covers the new project or site. In practice, adoption is not widely used because even small changes or differences in the affected environment can cause the actual impacts to signicantly change. Thus, it is difcult to demonstrate that the impacts of a proposal would be essentially the same as those evaluated by an analysis provided in an EIS for another project or area. 3.2.5 PIGGYBACKING As a means of reducing paperwork and duplication, agencies are encouraged to combine or piggyback NEPA documents with any other agency documents (§ 1500.4[o] and § 1506.4). Documents that are particularly amendable to piggybacking include regulatory documents, urban impact analyses, and nal decision or option documents. 9 For instance, the forest service has used piggybacking to combine their NEPA documents with the forest management plans. The EIS can be used to identify the agencies’ preferred alternative, which is detailed in the proposed management plan. Neither document repeats the other. The EIS and the forest management plan cross reference each other. The EIS can basically be viewed as an independent document that incorporates the proposed action by reference. 10 An EIS must be physically included in or attached to another report and may use the attached report material as supporting information. The EIS portion of the combined document, however, must be self-supporting and capable of standing on its own right as an analytical document that fully informs decision-makers and the public of the environmental effects and reasonable alterna- tives; the EIS is not to be presented as an outline or short summary that has been attached to the report. 3.3 LIMITATIONS ON ACTIONS AND INTERIM ACTIONS Over the period in which a NEPA analysis is under way, an agency may need to implement individual projects or program element actions that fall within the scope of an ongoing analysis. Pursuing an action under such instances may constitute a violation of NEPA’s requirements cited in Table 3.4. Fortunately, a special streamlining procedure has been established to address this prob- lem. Actions that may legitimately proceed in advance of completing the NEPA review are referred TABLE 3.4 Requirements Limiting Actions That May Be Pursued in Advance of Completing the NEPA Process “NEPA procedures must insure that environmental information is available to public ofcials and citizens before decisions are made and before actions are taken.” (§ 1500.1[b]) “Agencies shall not commit resources prejudicing selection of alternatives before making a nal decision.” (§ 1502.2[f]) EISs will not be used for “… justifying decisions already made.” (§ 1502.2[g]) CRC_7559_CH003.indd 69CRC_7559_CH003.indd 69 1/31/2008 4:24:12 PM1/31/2008 4:24:12 PM © 2008 by Taylor & Francis Group, LLC 70 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners to as interim actions. Interim action procedures are provided in § 1506.1 of the Regulations: Limita- tion on Actions During the NEPA Process. It is recommended that an agency consider preparing a separate interim action justication memorandum (IAJM) for individual actions that qualify for status as an interim action. Such a in § 1506.1. As a short memorandum (1–5 pages), it can be appended to later NEPA documents prepared for the specic action. 3.3.1 ELIGIBILITY FOR STATUS AS AN INTERIM ACTION An effort should be mounted early in the NEPA process to carefully review potential actions that may need to begin prior to the completion of the NEPA process. In performing such a review, actions should be reviewed to conrm that they actually fall within the scope of the NEPA review. Actions that do not fall within the scope of an ongoing analysis are, of course, not subject to the limitations presented in § 1506.1. Actions that are subject to the limitations (Table 3.4) and are not eligible for status as an interim action should be factored into project’s schedule and planning process. 3.3.2 TWO CATEGORIES OF INTERIM ACTIONS The Regulations draw a sharp distinction between interim action requirements applicable to a pro- grammatic EIS versus those that pertain to the preparation of a nonprogrammatic EIS (§ 1506.1). Programmatic EISs are discussed in Chapter 8. Table 3.5 species criteria and limitations that must be met in pursuing interim actions within each of the aforementioned categories. The rst category of limitations (project-specic) described in Table 3.5 is interpreted to apply only to project-specic reviews. 3.3.2.1 Additional Limitations As noted in Table 3.4, the Regulations place an additional restriction on actions that supplement the criteria cited in § 1506.1: Agencies shall not commit resources prejudicing selection of alternatives before making a nal deci- sion (§ 1502.2[f]). Candidates for interim action status should be reviewed for compliance with this provision, in addition to the limitations provided in Table 3.5. This provision prevents an agency from taking any TABLE 3.5 Criteria and Limitations That Must Be Met in Pursuing an Interim Action A. Project-Specic EIS (§ 1506.1[a]) Until an agency issues a Record of Decision (ROD), no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives. B. Programmatic EIS (§ 1506.1[c]) While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not undertake in the interim any major Federal action covered by the program which may signicantly affect the quality of the human environment unless such action: (1) Is justied independently of the program; (2) Is itself accompanied by an adequate environmental impact statement; and (3) Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives. CRC_7559_CH003.indd 70CRC_7559_CH003.indd 70 1/31/2008 4:24:13 PM1/31/2008 4:24:13 PM justication provides evidence that the action has been screened against the criteria specified © 2008 by Taylor & Francis Group, LLC NEPA Streamlining Provisions 71 action that commits resources to such an extent that it would bias the selection of alternatives; it applies to any interim action, regardless of whether the action is project specic or programmatic in nature. 3.3.3 LIMITATIONS ON PROJECT-SPECIFIC ACTION The Regulations do not provide specic guidance for determining precisely what constitutes “limit the choice of reasonable alternatives” (Table 3.5). Committing resources that would prejudice selec- tion of alternatives (§ 1502.2[f]) is a circumstance that certainly appears to trigger this criterion. The third interim action criterion pertaining to the programmatic EIS process also appears to shed some light on this question (§ 1506.1[c]). Based on the third criterion of § 1506.1(c), an action would appear to limit the choice of reasonable alternatives if it “tends to determine subsequent develop- ment or limit alternatives.” Consistent with the rule of reason, the author suggests that the following two tests be considered in determining if a particular action limits the choice of reasonable alternatives. Specically, would the action: 1. determine the subsequent development or direction of the proposed action? 2. commit resources that would prejudice selection of alternatives? 3.3.4 LIMITATIONS ON PROGRAMMATIC ACTIONS The reader should note that the limitations presented in § 1506.1(c) are only specically required for actions taken during the preparation of a required programmatic analysis. This verbiage was care- fully chosen to allow individual program actions to proceed while an agency is voluntarily preparing (in furtherance of the NEPA process) a programmatic EIS, not specically required under the Regu- lations. 11 The reader is cautioned to note that the precise line separating a required programmatic EIS from one that is not required, but which is prepared voluntarily, can require a considerable degree of professional judgment. 3.3.4.1 Justified Independently of the Program As denoted by the rst subcriterion in Table 3.5 (§ 1506.1[c][1]), an agency should be prepared to demonstrate that the need for the action exists apart from that of the program to which it is related or supports. Such justication might be demonstrated in a number of ways. For example, an agency may be required by law to implement a certain interim action such as an environmental monitoring effort, whether the entire program is implemented or not. An agency, for instance, might be able to demon- strate that a proposed transmission line is consistent with this criterion because it could be used to support other projects regardless of any decisions reached as a result of a programmatic EIS. 3.3.4.2 Accompanied by an Adequate EIS The second subcriterion cited in § 1506.1(c) states that to be eligible for the status as an interim action, an activity must be reviewed within an existing EIS. Strictly interpreted, this requirement leads to an absurd dilemma with potentially sever repercussions in terms of schedule and cost because it appears to prevent an agency from pursuing an interim action that is covered under a categorical exclusion (CATX) or FONSI. Thus, even if an interim action can be shown to have no signicant impact, a strict interpretation leads to the conclusion that it would still have to be reviewed in an EIS. The U.S. Department of Energy (DOE) has adopted a more reasonable interpretation for resolv- ing this dilemma. A memorandum prepared by Dr. Ziemer indicates that it is questionable that CEQ actually intended this requirement to apply once a determination that a proposed interim action does not require an EIS has been made (i.e., it is eligible for a FONSI or CATX). 12 Even though this CRC_7559_CH003.indd 71CRC_7559_CH003.indd 71 1/31/2008 4:24:13 PM1/31/2008 4:24:13 PM © 2008 by Taylor & Francis Group, LLC 72 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners criterion is specically designated for actions requiring an EIS, it can be logically extended to the entire NEPA process (i.e., EIS, EA, and CATX). Thus, Ziemer’s memorandum interprets CEQ’s intent to mean that an EIS is required for those actions that are not eligible for a FONSI or CATX. In short, the second subcriterion is interpreted to mean adequate NEPA review in lieu of an envi- ronmental impact statement. 3.3.4.3 Not Prejudice the Ultimate Decision As depicted by the third subcriterion, an agency should be prepared to demonstrate that the interim action would not prejudice the ultimate programmatic decision by predetermining subsequent development or limiting alternatives. Such a demonstration may require balancing the size of the interim action against the entire program, as well as considering the potential connected and related actions that may be triggered by implementing the interim action. 3.3.5 ACTIONS THAT ARE NOT GENERALLY PERMISSIBLE Conceptual design and feasibility studies are examples of actions that are generally considered to be eligible for status as an interim action. While conceptual design studies are generally deemed permissible, proceeding into detailed design is less certain. Design work beyond the conceptual design stage often tends to be extensive and site specic, which has the effect of eliminating alter- natives that include the use of other sites. Additionally, the level of resource commitment and the obvious advantage in project schedule relative to the other reasonable alternatives may tend to bias the agency’s choice of alternatives in favor of the detailed design. For example, the DOE’s NEPA implementation procedures specify that, with the exception of interim actions, the NEPA review process should normally be completed “… in advance of, and for use in reaching, a decision to proceed with detailed design. …” 13 Procurement of certain types of equipment and supplies that require a long-lead time may need to be started early in the planning process to avoid later schedule delays. However, such actions may not be eligible for interim action status if they tend to bias the choice of reasonable alternatives. The interim action provision is frequently interpreted to prohibit many site preparation activi- ties in support of the proposed action. Such activities tend to be prohibited because they tend to bias a nal decision in favor of proceeding with the proposed action at that site. Drilling a test boring might at rst appear to be an innocuous activity, having little or no envi- ronmental impact. However, activities such as construction of vehicle trails and drilling site prepa- ration might adversely affect archaeological and other resources. Under the interim action clause, this type of activity should be acceptable if it is rst accompanied with an archaeological survey, covered under some level of NEPA review, and if these data will be used to provide information for the NEPA analysis. 14 3.3.6 AWARDING CONTRACTS PRIOR TO COMPLETING NEPA Actions involving award of contracts require special consideration. The interim action criteria presented in § 1506.1 may prohibit award of a nal contract for a proposed action prior to completing NEPA. This is because the award of a nal contract may limit the choice of reasonable alternatives or bias a nal decision in favor of proceeding with a particular cause of action. However, NEPA’s requirements do not necessarily prohibit award of a nonbinding contract that is contingent on rst completing NEPA. 3.4 AGENCY MANAGEMENT AND OPERATIONAL CHANGES Two management and operational changes that can signicantly streamline an agency’s NEPA planning process are described below. CRC_7559_CH003.indd 72CRC_7559_CH003.indd 72 1/31/2008 4:24:13 PM1/31/2008 4:24:13 PM © 2008 by Taylor & Francis Group, LLC [...]... Francis Group, LLC CRC_7559_CH0 03. indd 75 1 /31 /2008 4:2 4:1 3 PM 76 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners NEPA was frequently cited as the means by which a wide range of planning and review requirements were integrated. 23 Batts and King Study Results of a survey of 500 NEPA professionals and decision-makers concerning the causes for NEPA delays were recently published... prepared a year.16 Table 3. 6 shows the average number TABLE 3. 6 NEPA Document Activity NEPA Document Number of Documents Prepared/Year Programmatic EISs Project EISs EAs CATX 30 –50 250–450 30 ,000–50,000 Unknown © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 03. indd 73 1 /31 /2008 4:2 4:1 3 PM 74 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 3. 7 Environmental Impact... CRC_7559_CH0 03. indd 79 1 /31 /2008 4:2 4:1 4 PM 80 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 3. 14 Causes for Action Filed under NEPA in 1994 Causes for Action No environmental impact statement Inadequate environmental impact statement No environmental assessment Inadequate environmental assessment No supplemental environmental impact statement Other Percentage 24 31 ... CRC_7559_CH0 03. indd 77 1 /31 /2008 4:2 4:1 4 PM 78 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 3. 11 Average Page Length (Main Body) of EISs Section Purpose and need for action Alternatives Affected environment Environmental consequences Total length (main body) Average Page Length 11 36 66 91 204 $1.4 million.27 It should also be noted that this EIS was prepared for. .. FL, 1997, pp 759–765 20 DOE, National Environmental Policy Act: Lessons Learned, Quarterly report for first quarter of fiscal year 1996, March 1, 1996 © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 03. indd 81 1 /31 /2008 4:2 4:1 4 PM 82 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 21 40 CFR 1501.8 22 Dreher R., Testimony Before the Committee on Resources United... Question 36 a 6 CEQ, Public memorandum titled, “Talking points on CEQ’s oversight of agency compliance with the NEPA Regulations,” 1980 7 CEQ, Memorandum: Guidance Regarding NEPA Regulations, 48 Federal Register, 34 2 63, July 28, 19 83 8 CEQ, Memorandum: Guidance Regarding NEPA Regulations, 48 Federal Register, 34 2 63, July 28, 19 83; 40 CFR 1506 .3( a–c) 9 Preamble to Final CEQ NEPA Regulations, 43 Federal... N.C and Rubin J.W., The National Environmental Policy Act, unpublished 12 Ziemer P.L., Guidance Regarding Actions That May Proceed During the National Environmental Policy Act (NEPA) Process: Interim Actions, EH-25 Memorandum, July 12, 1992 13 10 CFR 1021.210(b) 14 Lillie T.H and Lindenhofen H.E., Military construction and the environment: NEPA as a blueprint for compliance, Federal Facilities Environmental. .. issue an injunction in 93% of the cases.19 PROBLEMS 1 Which two agencies produce the most EISs? 2 List five methods for reducing project delays as a result of NEPA? © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 03. indd 80 1 /31 /2008 4:2 4:1 4 PM NEPA Streamlining Provisions 81 3 What are the two leading causes cited for NEPA lawsuits? 4 Do the NEPA regulations encourage integrating NEPA with other processes?... 28 CEQ, Forty most asked questions concerning CEQ’s National Environmental Policy Act Regulations, 46 Federal Register 18026, March 23, 1981 29 Cohen E.B., NEPA News (published by NEPA Watch), No 4 (January–February 1997) 30 Lillie, T.H and Lindenhofen, H.E., NEPA as a tool for reducing risk to programs and program managers, Federal Facilities Environmental Journal, Spring 1991 31 Lillie T.H and Bowman... use if the agency decides not to go forward with the proposal Would such a long-lead procurement process constitute a violation of NEPA? REFERENCES 1 Council on Environmental Quality, The National Environmental Policy Act: A Study of Its Effectiveness after Twenty-Five Years (1997), p 3 2 Mass Gen Laws ch 30 , § 61 3 N.Y Envtl Conserv Law, § 8-0 109(8) 4 Council on Environmental Quality’s (CEQ) 40 CFR . Unknown CRC_7559_CH0 03. indd 73CRC_7559_CH0 03. indd 73 1 /31 /2008 4:2 4:1 3 PM1 /31 /2008 4:2 4:1 3 PM © 2008 by Taylor & Francis Group, LLC 74 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners of. 75CRC_7559_CH0 03. indd 75 1 /31 /2008 4:2 4:1 3 PM1 /31 /2008 4:2 4:1 3 PM © 2008 by Taylor & Francis Group, LLC 76 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners NEPA. … (Continued) CRC_7559_CH0 03. indd 65CRC_7559_CH0 03. indd 65 1 /31 /2008 4:2 4:1 2 PM1 /31 /2008 4:2 4:1 2 PM © 2008 by Taylor & Francis Group, LLC 66 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE