NEPA and Environmental Planning : Tools, Techniques, and Approaches for Practitioners - Chapter 8 pptx

189 8 Preparing Environmental Impact Statements ing of the basic step-by-step procedural or process requirements that must be followed in preparing an environmental impact statement (EIS). Emphasis is placed on providing the reader with specic tools and techniques for streamlining the EIS process. A thorough treatment of all the requirements relevant to the preparation of an EIS is beyond the scope of a single chapter. Thus, for a more detailed discussion of the EIS process including the documen- tation requirements, the reader is referred to the companion book, Environmental Impact Statements. 1 8.1 OVERVIEW OF FUNDAMENTAL EIS CONCEPTS The EIS process consists of two distinct phases, which will be described later: 1. Draft EIS 2. Final EIS The term EIS is a generic term used to describe a statement in either its draft or nal stage. The EIS process essentially begins at the time an agency rst considers a proposed action that may signicantly affect the quality of the human environment. As we consider the details of the EIS process, the reader should note that the principal purpose of an EIS is to serve as an “action-forcing” device “… to help public ofcials make decisions that are based on understanding of environmental consequences and take actions that protect … the environment (§ 1500.1[c]).” The following sections describe fundamental concepts underlying the EIS process. These con- cepts, beginning in Section 8.2, provide the basis for describing the preparation of EISs. 8.1.1 LEAD AND COOPERATING AGENCIES There are times when an action requiring an EIS may involve two or more federal agencies (§ 1501.6). The agency(ies) with overall responsibility for preparing the EIS is referred to as the lead agency (§ 1501.5, § 1508.16). State and federal agencies may also serve as “joint lead agencies” as long as the group includes at least one federal agency (§ 1501.5[b]). Any agency(ies) that assists the lead agency in preparing an EIS is referred to as a cooperating agency. These agencies may include any federal agency other than the lead agency having “jurisdic- tion by law or special expertise with respect to any environmental impact” that will be considered in the EIS. Cooperating agencies may also include state and local agencies, or an Indian tribe if the proposed action may affect a reservation (§ 1508.5). 8.1.1.1 Disputes Occasionally, disagreements may arise between the lead and cooperating agencies over the scope and content of an EIS. When this happens the agencies are expected to settle any disputes among them- selves. For example, an EIS could be deemed technically adequate but still fail to cover sufciently the needs of a cooperating agency if the lead agency fails to provide a comprehensive scope. 2 CRC_7559_CH008.indd 189CRC_7559_CH008.indd 189 1/31/2008 4:40:56 PM1/31/2008 4:40:56 PM This chapter focuses on providing environmental planners and agency officials with an understand- © 2008 by Taylor & Francis Group, LLC 190 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Where both a lead and a cooperating agency believe that the EIS has been adequately prepared, it can be issued even if the two may disagree over the ultimate conclusions or decisions recorded in the record of decision (ROD); in other words, the EIS can be issued as long as the agencies do not disagree over the content of the information or the analysis performed. The lead and cooperat- ing agencies may wish to select their own preferred alternatives and are free to pursue separate courses of action once their respective RODs have been issued. 2 (For additional information, refer to Section 8.4.) 8.1.2 SELECTING THE LEAD AGENCY Potential candidates for the position of lead agency must decide among themselves which one will be appointed. Factors used in determining the lead agency designation are listed below in order of descending importance (§ 1501.5[c]): 1. Magnitude of the agency’s involvement 2. Project approval/disapproval authority 3. Expertise concerning the action’s environmental effects 4. Duration of the agency’s involvement 5. Sequence of the agency’s involvement If, after a period of 45 days, the concerned federal agencies cannot agree on a lead agency, a request for determination can be led with the Council on Environmental Quality (CEQ), which will make the decision (§ 1501.5[e]). Responsibilities. Responsibility for preparing an EIS lies with the lead agency or with a con- tractor selected by it. The lead agency may also delegate this responsibility to a cooperating agency (§ 1506.5[c], § 1501.6[b]). However, because Section 102(2)(C) of the Act strongly implies that an EIS can only be prepared by a federal agency, questions arose early on regarding the extent to which a federal agency can delegate its responsibility. NEPA Amendment. As a result of mounting confusion, Congress amended the National Envi- ronmental Policy Act (NEPA) in 1975 by passing Public Law 94-83. This added a new section, 102(2)(D), enacted at the time primarily to facilitate situations where state agencies receive block grants from a federal agency for highway construction. The amended Act allows EISs to be pre- pared by state agencies or state ofcials in certain situations where major actions are funded under a federal program or by a grant to a state. 3 However, federal agencies are still responsible for the scope, content, and objectivity of the EIS. The allocation of responsibilities for specic environ- mental issues should be completed during the scoping stage (§ 1501.7[a][4]). 8.1.2.1 Lead Agency Responsibilities Once a lead agency has been identied it should begin seeking cooperation and assistance from other federal agencies that have jurisdiction by law or special expertise concerning issues related to the proposal. 4 The lead agency is also expected to request the participation of cooperating agencies at the earliest possible time and must identify by letter or memorandum the other agencies that will undertake cooperating responsibilities (§ 1501.5[c]). A federal agency may also request the lead agency to designate it as a cooperating agency. The lead agency should solicit cooperation from both state and local agencies as well as from affected Indian tribes in cases relating to their lands or sites of religious or cultural signicance to the tribe. The lead agency is ultimately responsible for the content and accuracy of the EIS. As funds permit, it is also expected to underwrite the costs of the activities and analyses that it requests coop- erating agencies to perform. In their budget requests, potential lead agencies are expected to request CRC_7559_CH008.indd 190CRC_7559_CH008.indd 190 1/31/2008 4:40:56 PM1/31/2008 4:40:56 PM © 2008 by Taylor & Francis Group, LLC Preparing Environmental Impact Statements 191 funds sufcient to cover the cost of preparing the EIS (§ 1501.6). Other lead agency responsibilities include (§ 1501.7) publishing the notice of intent (NOI) in the Federal Register, determining the scope of the EIS, identifying and eliminating insignicant environmental issues, and determining the EIS schedule. Cooperating Agency’s Responsibilities. Under the direction of the lead agency, cooperating agen- cies are expected to assist it in providing information and preparing the required analysis. Cooperating agencies may be expected to provide staff resources to assist the lead agency in the analysis and to use their own funds to cover activities that the lead agency is unable to nance (§ 1501.6[b][3]). Occasionally, a cooperating agency may not be able to meet its responsibilities in preparing an EIS. In these cases, the cooperating agency must inform the lead agency in writing that it is unable to meet some of the commitments requested because of other program obligations. A copy of this reply must also be submitted to the CEQ (§ 1501.6[c]). 4 8.1.2.2 Applicants Where an action involves an applicant, the preparation of an EIS must begin early in the process and “no later than immediately after an application is received” by the agency (§ 1502.5[b]). If requested by an applicant, the agency must set time limits on the EIS process that also need to be consistent with the purposes of NEPA and other essential considerations of national policy (§ 1501.8[a]). Taking Action against an Applicant. An agency must notify an applicant promptly that it will take action to ensure compliance with NEPA’s requirements in cases where the agency is consider- ing an application from a nonfederal entity and learns that it is about to take an action within the agency’s jurisdiction that would (§ 1506.1) 1. result in an adverse impact, or 2. limit the choice of reasonable alternatives. Information Provided by Applicants. Federal agencies may request an applicant to furnish information that will be used in preparing the EIS (§ 1501.2[d]). In these cases, the agency should outline the information it requires. An agency may request an applicant to prepare an environmental report or to submit other types of data, but it is also required to carry out an independent verication and evaluation to ensure the accuracy of the data provided (§ 1506.5). An analysis that exhibits “unquestioning acceptance” of a project applicant’s statements regarding its objectives may be deemed defective. The agency must also conduct or commission an independent analysis of the alternatives offered by an applicant. 5 Direct responsibility for preparing the actual EIS remains with the federal agency or with the inde- pendent contractor selected by it. This is because the EIS conict of interest provision prevents applicants from preparing the actual EIS themselves. 6 Case law indicates that federal agencies may charge applicants the cost of preparing the required NEPA documentation for their proposed actions. For example, in one instance, the Bureau of Land Management charged an applicant the cost of preparing NEPA documentation to cover a right-of- way that it had requested. 7 When challenged, the court ruled that the bureau was correct in assessing the charge because the EIS would not have been prepared had the applicant not made the request. 8.1.3 SCHEDULE AND TIMING REQUIREMENTS The principal steps to follow in preparing a typical EIS are outlined in Figure 8.1. Table 8.1 provides a comprehensive list of all time limits and schedule requirements presented in the NEPA regula- tions (Regulations) governing various aspects of the EIS process. • • • • CRC_7559_CH008.indd 191CRC_7559_CH008.indd 191 1/31/2008 4:40:56 PM1/31/2008 4:40:56 PM © 2008 by Taylor & Francis Group, LLC 192 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 8.1.3.1 When Should an EIS Begin? An EIS must be prepared early enough to contribute to the decision-making process. It must not be used to rationalize or justify decisions already made (§ 1508.23, § 1502.5). An agency must begin preparation of an EIS as close as possible to the time in which the agency is developing or is presented with a proposal, so that the statement can be completed in time to assist the decision-maker in reaching a nal decision. Table 8.2 provides specic regulatory directions as to when an EIS should be phased to support typical types of activities (§ 1502.5). 8.1.3.2 How Long Should an EIS Take? “Documentation procrastination” is a term that has been used in referring to the practice of failing to set a timely schedule for the preparation of an environmental assessment (EA)/EIS. An achiev- able schedule should be established. As specied in the Regulations, the preparation of an EIS even for large and complex projects should normally require 12 months or less to complete; a program- matic EIS (P-EIS) may require a somewhat longer period. The CEQ believes that such a time frame Determine need for taking action Issue notice of intent (NOI) Perform public scoping Prepare draft environmental impact statement (EIS) Issue notice of availability (NOA). File draft with environmental protection agency (EPA). Circulate draft EIS for public review and comment Incorporate comments Issue NOA. File final EIS with the EPA. Issue final document for public review Choose final course of action and issue record of decision (ROD) Implement decision. Perform applicable mitigation and monitoring FIGURE 8.1 Principal steps in a typical EIS process. CRC_7559_CH008.indd 192CRC_7559_CH008.indd 192 1/31/2008 4:40:57 PM1/31/2008 4:40:57 PM © 2008 by Taylor & Francis Group, LLC Preparing Environmental Impact Statements 193 is well within the planning cycle of most large projects. 8 In practice, however, the EIS process often exceeds these guidelines, indicating such guidance may be unrealistic. 8.1.3.3 What Is the Maximum Page Limit for an EIS? A nal EIS (e.g., paragraphs [d] through [g] of § 1502.10) should normally be less than 150 pages in length. Where a proposal is of unusual scope or complexity, the EIS should normally be less than 300 pages (§ 1502.7). TABLE 8.1 Schedule and Time Limits for Preparing an EIS • Completion of an EIS should normally require less than 1 year. 8 • If, after a period of 45 days, an agreement cannot be reached regarding the designation of a lead agency, a request for determination can be led with the CEQ, which will then make that decision (§ 1501.5[e]). • In cases where an agency circulates a summary of an EIS and receives a timely request for the entire statement and for additional time to comment, the time shall be extended by at least 15 days beyond the minimum period (§ 1502.19[d]). • In cases where a draft EIS is to be considered at a public hearing, the agency should make the statement available to the public at least 15 days in advance unless the purpose of the hearing is only to provide information pertaining to the draft (§ 1506.6[c][2]). • Following consultation with the lead agency, the EPA may reduce or extend the periods prescribed in the Regulations. However, if the lead agency does not concur with the extension of time, the EPA may not extend it for more than 30 days (§ 1506.10[d]). • A proposed action shall be made or recorded under § 1505.2 by a federal agency as follows (§ 1506.10[b]): 1. 90 days after publication of the NOA for a draft EIS or 2. 30 days after publication of the NOA for a nal EIS. • Where a nal EIS is led within 90 days following the ling of the draft EIS with the EPA, the minimum 30-day period and the minimum 90-day period may run concurrently. However, subject to § 1506.10[d], agencies shall allow not less than 45 days for comments on draft EISs (§ 1506.10[c]). • A legislative EIS may be transmitted to Congress up to 30 days later than its accompanying legislative proposal to allow time for completion of an accurate statement that can serve as the basis for public and congressional debate (§ 1506.8[a]). • In responding to a referral, the CEQ shall take no longer than 60 days to complete actions for resolving the issue (§ 1504.3[g]). • A referring agency shall deliver its referral to the CEQ no later than twenty-ve (25) days after the nal EIS has been made available to the EPA, commenting agencies, and the public (§1504.3[b]). • No later than twenty-ve (25) days after a referral has been made to the CEQ, the lead agency may deliver a response to both the CEQ and the referring agency (§ 1504.3[d]). TABLE 8.2 When an EIS Should Be Phased to Support Agency Activities Projects directly undertaken by a federal agency: An EIS must be prepared at the feasibility analysis (go/no-go) stage. If necessary, the EIS may be supplemented at a later stage when more reliable information is available. Private applications to the agency: Preparation of the EA/EIS must begin no later than immediately after the application has been received. Adjudications: A nal EIS must be completed before the nal staff recommendation is submitted to the decision-makers. As appropriate, the EIS may follow preliminary hearings designed to gather information for use in its preparation. Informal rulemaking: A draft EIS should be prepared in time to accompany the proposed rule. CRC_7559_CH008.indd 193CRC_7559_CH008.indd 193 1/31/2008 4:40:57 PM1/31/2008 4:40:57 PM © 2008 by Taylor & Francis Group, LLC 194 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 8.1.4 EIS CONTRACTORS Due to stafng and expertise limitations outside, consulting rms are often used in preparing EISs, but it should be noted that their use has raised issues involving potential conicts of interest. 8.1.4.1 To avoid any conict of interest, an EIS contractor can only be selected by the lead agency or, where appropriate, by a cooperating agency (§ 1506.5[c]). Specically, the Regulations state Contractors shall execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating agency, specifying that they have no nancial or other interest in the outcome of the project. This disclosure requirement is interpreted broadly by the CEQ to mean “… any known benets other than general enhancement of professional reputation.” 9 Under this interpretation, a company is not eligible to prepare an EIS if it has a guarantee of future work. Whereas § 1506.5(c) prohibits private contractors having a vested interest in the outcome from actually preparing an EIS, it does not specically prevent them from participating in its preparation. For example, a conict of interest may exist if a construction company has a guarantee of future design or construction work on a proposed project. A conict might also include indirect benets such as a guarantee in which the company would benet from being awarded the contract to build a new business center following its construction of a new roadway off-ramp. However, the company would probably not be disqualied from preparing an EIS simply because it had been involved in developing initial data or plans for the proposed project, as long as it has no future nancial or other interest in the outcome of the proposal. It is also free to submit bids for future work on the project after the EIS has been approved. 10 The reader should note that this EIS disclosure requirement does The CEQ has issued an opinion indicating that at times it believes agencies have been overly strict in interpreting this provision. For example, some rms have been excluded from bidding on an EIS contract simply because they had links to a parent company with design or construction capabilities. As interpreted by the CEQ in § 1506.5(c), rms are merely prohibited from preparing an EIS if they have nancial or other interests in the outcome of the project during the period in which the EIS is under way. 6 If a contractor is selected to prepare an EIS, the responsible federal ofcial must provide the necessary guidance and also “participate in [its] preparation.” The agency is responsible for inde- pendently evaluating and verifying the accuracy of the EIS prior to its approval and assumes full “responsibility for its scope and contents (§ 1506.5[c]).” Preparer versus Participant. A review of case law reveals that failure to comply with the conict of interest provision can, in and of itself, provide a basis for successfully challenging an EIS. 11 Some confusion centering on the use of the term “preparer” in § 1506.5(c) has developed regarding the applicability of this provision. Neither the Regulations nor the subsequent CEQ guidance has clearly dened this term. The courts have made a distinction between the roles of a “preparer” ver- sus that of a “participant.” A preparer is one who translates information into written form or writes a document. It follows that entities may participate (e.g., contribute information) in the preparation of an EIS without being designated as preparers. The difference between being considered a preparer or a participant largely centers on the degree of discretion one has to accept, revise, or reject information submitted for consideration by a participant. For instance, a contractor not involved in preparing an EIS but engaged in pre- paring signicant support or background papers for it is unlikely to be considered a preparer and would therefore not be subject to the disclosure statement requirement. 12 Similarly, other courts have concluded that the participation of a consultant in the preparation of an EIS and its supporting documentation is not improper, provided the agency takes responsibility and actively participates in preparing the analysis. 13 CRC_7559_CH008.indd 194CRC_7559_CH008.indd 194 1/31/2008 4:40:57 PM1/31/2008 4:40:57 PM not specifically apply to the preparation of EAs. © 2008 by Taylor & Francis Group, LLC EIS Contractors and Conflicts of Interest Preparing Environmental Impact Statements 195 Generally, individuals who have not been granted authority to determine the content of an EIS may be given responsibility for formulating proposed responses to EIS comments or for organizing a team to develop comments without being considered preparers. This is because the individu- als’ roles have been limited to providing information and making recommendations. Conversely, granting entities with decision-making authority over the content of the EIS is likely to trigger the denition of a preparer and would therefore be subject to the conict of interest requirement. 8.1.5 INTEGRATING OTHER ENVIRONMENTAL REQUIREMENTS A draft EIS must list all federal permits, licenses, and other entitlements that must be obtained in order to implement the proposal (§ 1502.25[b]). Permit requirements are usually identied through agency consultation. 14 As feasible, the NEPA analysis should be prepared jointly with applicable state or local agencies (§ 1502.5[b]). During scoping, the lead agency is also required to identify related environmental review and consultation requirements so that the lead and cooperating agencies may prepare other required studies concurrently and integrate them with the EIS (§ 1501.7[a][6], § 1502.25[a]). As described in Chapter 4, some of these requirements include Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), National Historic Preservation Act (NHPA) of 1966 (16 U.S.C. 470 et seq.), Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and Other environmental review laws and executive orders. The EIS process is to be integrated 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], § 1502.25[a]). The lead agency is expected to consult other agencies that have jurisdiction by law or special expertise in environmental issues related to the preparation of an EIS. This requirement is known as consultation. The term “jurisdiction by law” means having agency authority to approve, veto, or nance all or part of a proposal (§ 1508.15). The term “special expertise” means possessing statu- tory responsibility, agency mission, or related program experience (§ 1508.26). The Regulations direct federal agencies to cooperate with state and local agencies in order to reduce duplication between NEPA and comparable state and local environmental requirements. Where these requirements do not conict with NEPA, federal agencies are directed to prepare an EIS that fullls both these requirements and those of NEPA (§ 1506.2[c]). 8.1.5.1 Pollution Prevention As described in Chapter 4, the CEQ has issued guidance instructing agencies to take every oppor- tunity to incorporate pollution prevention (P2) considerations into their early planning and decision- making processes. Where appropriate, documents such as the EA, EIS, and ROD should record the results of this review. 15 The term “pollution prevention” is dened more broadly by the CEQ than by the EPA under the Pollution Prevention Act of 1990. 16 Agencies are encouraged to include P2 as an issue for review during the scoping process. As appropriate, P2 measures should be included as part of the proposed action, reasonable alternatives, and mitigation measures examined by the agency. 8.1.6 NATIONAL REGISTER OF HISTORIC PLACES NEPA pronounces a goal to … preserve important historic, cultural, and natural aspects of our national heritage … (NEPA Sec- tion 101[b][4]) • • • • CRC_7559_CH008.indd 195CRC_7559_CH008.indd 195 1/31/2008 4:40:57 PM1/31/2008 4:40:57 PM © 2008 by Taylor & Francis Group, LLC 196 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners As described in Chapter 4, Section 106 of the NHPA of 1966 regulates federally assisted actions that may affect cultural and historic resources. Consultation with the state historic preservation ofce (SHPO) may also be required. Under the NHPA, actions must be reviewed for potential signicance where a reasonable possi- bility exists for them to impact structures or sites having potential cultural, historic, or archaeologi- cal value. Specically, a review must be conducted to determine if a resource is eligible for listing on the National Register of Historic Places. Where applicable, a cultural resources review (CRR) is conducted to identify the potential impacts to such structures and sites. Programmatic Agreement (PA). Any study of the kinds described above should begin early in the process. In certain instances, it may be impractical and too costly to identify impacts until the detailed design stage or where the activities would extend over a wide geographical area. One approach for dealing with this contingency might involve entering into a PA with the SHPO, specifying the steps to be taken to minimize impacts to potential resources encountered after the project is under way. Under this approach, the EIS could discuss the PA and reference specic steps that would be followed to avoid or minimize impacts. 8.1.6.1 Endangered Species Where potential actions may signicantly disturb any plants, animals, or their habitats, a “bio- logical resources review” may need to be performed. As described in Chapter 4, the biological resources review should identify those species present in the areas under review. Special consider- ation is given to species of concern including any ora or fauna listed by state or federal agencies as sensitive, endangered, or threatened. Species that are candidates for listing should also be reviewed. Consultations with the U.S. Fish and Wildlife Service should be conducted, especially where a bio- logical resources review indicates that a listed species or a candidate for listing may be impacted. 8.1.6.2 Floodplain and Wetlands Requirements As described in Chapter 4, President Carter issued Executive Order 11990 pertaining to the protec- tion of the nation’s wetlands. 17 Under this order, federal agencies are required to establish procedures to ensure that adequate consideration is given to protecting wetlands during the planning process. Wetlands include geomorphic features such as swamps, marshes, and ponds. The specic designation of a wetland area is normally based on three primary characteristics: (1) soil type, (2) frequency of saturation, and (3) types of species present. The reader should note that an area does not need to be continuously wet to be considered a wetland. An area may be designated a wetland even if it is only occasionally saturated, as long as it is capable of supporting certain types of species. In that same year, President Carter issued Executive Order 11988 governing management of the nation’s oodplains. 18 This order requires federal agencies to establish procedures for ensuring that the effects of proposed federal actions within a oodplain are adequately considered during an agency’s planning process. Implementing guidelines were issued in the following year. 19 A oodplain/wetland assessment is normally required if an activity may potentially impact either of these. The U.S. Corps of Engineers should be contacted when preparing such an assessment. Criminal liabilities are associated with performing activities without prior authorization that may affect a oodplain or wetland. For this reason a review should be performed early in the EIS process to determine if one or both of these would be affected by a proposed action or one of its alternatives. 8.1.7 CLASSIFIED PROPOSALS, EMERGENCY SITUATIONS, AND PERIODIC REVIEWS With respect to preparing an EIS, three circumstances require special mention: classied proposals, emergency situations, and periodic NEPA reviews. CRC_7559_CH008.indd 196CRC_7559_CH008.indd 196 1/31/2008 4:40:57 PM1/31/2008 4:40:57 PM © 2008 by Taylor & Francis Group, LLC Preparing Environmental Impact Statements 197 Agencies are not required to disclose a NEPA document publicly if the information it contains might jeopardize national security. As applicable, an agency’s NEPA implementation should include specic procedures for exempting classied information from public disclosure (§ 1507.3[c]). Such procedures apply to NEPA documents that have been properly classied under criteria established by Executive Order or statute in the interest of national defense or foreign policy. It is important to note that such exemptions do not absolve an agency from its responsibility to prepare and use the EIS in the agency’s internal decision-making process. 20 Dissemination of the classied portion can be restricted to appropriate decision-makers and individuals according to requirements that apply to classied information. Information may be organized in the EIS that separates classied information from unclassied material. Unclassied portions of the document can be made available for public review, whereas the classied portion may be circulated only within an appropriate branch of the agency in accor- dance with the procedures for handling such material (§ 1507.3). 8.1.7.2 Emergency Situations As described in Section 5.2, a special provision has been established for situations where emergency circumstances make it necessary for an agency to take actions that do not comply with NEPA’s requirements (§ 1506.11). Agencies are expected to consult the CEQ about alternative arrange- ments. These must be limited to actions considered necessary to respond to the emergency. 8.1.7.3 Guidance on Periodically Reexamining EISs The CEQ has identied two conditions where EISs more than 5 years old should be reexamined to determine if they are still valid where a proposed action has not yet been implemented, or the proposed action involves an ongoing action. If an agency’s review indicates that a substantial change has occurred, or if there are signicant new circumstances or information relevant to environmental concerns that have bearing on the proposed action or its impacts, a supplemental EIS (S-EIS) must be prepared (§ 1502.9[c]). 21 At least one court has ruled that an EIS cannot be invalidated simply because it is too old. In this case, an EIS was prepared in 1975 for the construction of a levee by the Army Corps. The construction was a progressive project performed over many years. An EA was initially prepared to cover the rst portion of the construction project. This concluded that no signicant impacts would result that had not already been evaluated in the EIS. In 1990, the EIS was challenged on the basis that it was too old to continue providing coverage for work that was starting on a new segment of the project. The court determined that there was no reason to prepare a new EIS simply because the existing EIS was old. In other words, as long as the original information and conclusions remain valid, an EIS cannot be invalidated simply because of its age. 22 8.2 PREPARING THE EIS The following sections describe the special issues of interest, procedural requirements, and step- by-step process for preparing an EIS. 8.2.1 NOTICE OF INTENT Following the decision to prepare an EIS and prior to the beginning of the formal scoping pro- cess, the lead agency must publish an NOI in the Federal Register (§ 1501.7) that describes both • • CRC_7559_CH008.indd 197CRC_7559_CH008.indd 197 1/31/2008 4:40:58 PM1/31/2008 4:40:58 PM © 2008 by Taylor & Francis Group, LLC 8.1.7.1 Classified Proposals 198 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners the proposed action and possible alternatives (§ 1508.22). Its purpose is to inform the public and other interested parties that an EIS will be prepared. In situations where a long lag time may exist between the decision to prepare the EIS and its actual preparation, an agency’s implementation pro- cedure may allow it to postpone the publication of the NOI until a date is reached that still provides reasonable time before work begins on the draft EIS (§ 1507.3[e]). If an agency fails to provide appropriate notice, the lapse may provide sufcient grounds for successfully challenging the EIS. However, a party does not necessarily have sufcient grounds to challenge an agency on this point alone if it has received notice by some other means. 23 Table 8.3 presents suggested groups to which notices may be directed, and methods of notication. Where an action may be of national concern, notices must be mailed to national orga- nizations that are expected to have an interest in the matter (§ 1506.6[a]). The U.S. Environmental Protection Agency’s Ofce of Wetlands, Oceans, and Watersheds has issued the guidance document Community Culture and the Environment: A Guide to Understanding a Sense of Place. 24 The guide, together with related training, provides tools for working with com- munity groups to protect the environment. Copies of this guide can be obtained from the National Center for Environmental Publications and Information at (513) 489-8190, (800) 490-9198 or by mail to NCEPI, U.S. EPA Publications Clearinghouse, P.O. Box 42419, Cincinnati, OH, 45242. 8.2.1.1 Federal Register The Federal Register is the ofcial daily publication for rules, proposed rules, and notices of fed- eral agencies and organizations, as well as executive orders and other presidential documents. It is updated daily by 6 a.m. and is published Monday through Friday, except federal holidays. Information on the availability of documents, schedule of meetings, and decisions is published in the register. In addition, EPA publishes a list of EISs that they have received from agencies each week and a summary of ratings on EISs that they have just reviewed. This register is the location where one can nd notices from federal agencies regarding their NEPA actions. It can be accessed at http://www.gpoaccess.gov/fr/index.html. The easiest way to pull up notices is to have as much information as possible. Key words such as the name of the agency, location of the action, and date or date ranges of the publication are all helpful in the search. 8.2.2 THE SCOPING PROCESS It is imperative that an agency accurately determines the proper scope of potential actions and their associated impacts. The term “scoping” is a NEPA expression that describes one major public involvement aspect of the NEPA EIS process (§ 1501.7). A well orchestrated scoping process pro- vides agencies with a particularly effective means for reducing paperwork and delays. The concept of a formal and public scoping process was one of the features that the public most strongly sup- ported during a review of the draft Regulations in 1977. 25 TABLE 8.3 Methods for Notifying Parties Where Effects Are Primarily of Local Interest • State and area wide clearinghouses • Consulting with Indian tribes whose lands or sites are of religious and cultural signicance • Local newspapers and other local media • Interested community organizations and small business associations • Newsletters and direct mailing to owners and occupants of nearby or affected property • Posting of notice on and off site in the area where the action is to be located CRC_7559_CH008.indd 198CRC_7559_CH008.indd 198 1/31/2008 4:40:58 PM1/31/2008 4:40:58 PM © 2008 by Taylor & Francis Group, LLC [...]... …?” for the phrase “Would a more detailed discussion/analysis of the issue …?” © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 223 1/31/20 08 4:4 1:0 3 PM 224 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 8. 8 Criteria for Determining the Scope and Level of Detail Appropriate for a P-EIS 1 2 3 4 5 6 7 8 Can the issue be appropriately considered and. .. P-EIS can establish high-level direction and provide high-level coverage for subsequent lower level NEPA documents that will evaluate the details and © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 221 1/31/20 08 4:4 1:0 3 PM 222 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners specific actions that are included within the scope of the P-EIS Subsequent documents... commenting agencies and the public for review © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 211 1/31/20 08 4:4 1:0 1 PM 212 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 8. 2.7.1 Issuing the Final EIS As described below, the final EIS is also required to be publicly circulated using a process similar to that for the draft EIS 8. 2.7.2 Procedures for Issuing the... Specific decision-points that might need to be considered are denoted by diamond figures along © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 201 1/31/20 08 4:4 0:5 8 PM 202 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Highest level decision Lowest level decision Private sector decisions Disposition of on-site RLW? Accept off-site RLW? and programmatic... circumstances, both the draft and the final documents may be required © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 215 1/31/20 08 4:4 1:0 1 PM 216 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners As mentioned above, usually only a draft legislative EIS is prepared and transmitted to the Congress and the public for review (§ 1506 .8) This variation is based... assist decision-makers in reviewing proposed changes to the description/analysis of EAs If these are considered substantial, preparation of additional NEPA documentation is warranted © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 219 1/31/20 08 4:4 1:0 2 PM 220 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Identify a proposed change (and/ or new information... standpoint of public health or environmental quality” (§ 1504.1[b]) © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 213 1/31/20 08 4:4 1:0 1 PM 214 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Similarly, under the “predecision referral” provision, any federal agency has the authority to refer another agency’s final EIS to the CEQ during the mandatory 30-day... Potomac River © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 217 1/31/20 08 4:4 1:0 2 PM 2 18 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners determining when a change to an action described in a NEPA document (EA or EIS) is sufficient to trigger preparation of additional NEPA documentation This tool is consistent with the rule of reason and is referred to... the decision, and to refer the matter to CEQ Once a © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 207 1/31/20 08 4:4 1:0 0 PM 2 08 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners matter is referred to the CEQ, agencies tend to accept the CEQ’s suggestions or to reach an agreement with the EPA Thus the EPA has considerable power to ensure that environmentally... detail in Section 8. 4 Although the EPA does not have authority to halt a project simply because it could result in unacceptable environmental impacts, use of the alphanumeric rating may well provide political © 20 08 by Taylor & Francis Group, LLC CRC_7559_CH0 08. indd 209 1/31/20 08 4:4 1:0 0 PM 210 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners leverage for bringing it . EIS. CRC_7559_CH0 08. indd 201CRC_7559_CH0 08. indd 201 1/31/20 08 4:4 0:5 8 PM1/31/20 08 4:4 0:5 8 PM © 20 08 by Taylor & Francis Group, LLC 202 NEPA and Environmental Planning: Tools, Techniques, and Approaches for. • • CRC_7559_CH0 08. indd 197CRC_7559_CH0 08. indd 197 1/31/20 08 4:4 0:5 8 PM1/31/20 08 4:4 0:5 8 PM © 20 08 by Taylor & Francis Group, LLC 8. 1.7.1 Classified Proposals 1 98 NEPA and Environmental Planning: Tools, Techniques,. 101[b][4]) • • • • CRC_7559_CH0 08. indd 195CRC_7559_CH0 08. indd 195 1/31/20 08 4:4 0:5 7 PM1/31/20 08 4:4 0:5 7 PM © 20 08 by Taylor & Francis Group, LLC 196 NEPA and Environmental Planning: Tools, Techniques, and Approaches for