Draft Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act, 77492-77498 [2011-31983]
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Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices
Data Workshop is a data report which
compiles and evaluates potential
datasets and recommends which
datasets are appropriate for assessment
analyses. The product of the Assessment
Process is a stock assessment report
which describes the fisheries, evaluates
the status of the stock, estimates
biological benchmarks, projects future
population conditions, and recommends
research and monitoring needs. The
assessment is independently peer
reviewed at the Review Workshop. The
product of the Review Workshop is a
Summary documenting Panel opinions
regarding the strengths and weaknesses
of the stock assessment and input data.
Participants for SEDAR Workshops are
appointed by the Gulf of Mexico, South
Atlantic, and Caribbean Fishery
Management Councils and NOAA
Fisheries Southeast Regional Office,
HMS Management Division, and
Southeast Fisheries Science Center.
Participants include data collectors and
database managers; stock assessment
scientists, biologists, and researchers;
constituency representatives including
fishermen, environmentalists, and
NGO’s; International experts; and staff
of Councils, Commissions, and state and
federal agencies.
During the SEDAR 28 pre-data
workshop webinar participants will
present summary data, and discuss data
needs and treatments.
Although non-emergency issues not
contained in this agenda may come
before this group for discussion, those
issues may not be the subject of formal
action during this meeting. Action will
be restricted to those issues specifically
listed in this notice and any issues
arising after publication of this notice
that require emergency action under
section 305(c) of the Magnuson-Stevens
Fishery Conservation and Management
Act, provided the public has been
notified of the Council’s intent to take
final action to address the emergency.
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Special Accommodations
The meeting is physically accessible
to people with disabilities. Requests for
sign language interpretation or other
auxiliary aids should be directed to the
Council office (see ADDRESSES) at least
10 business days prior to the meeting.
Dated: December 8, 2011.
Tracey L. Thompson,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2011–31886 Filed 12–12–11; 8:45 am]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XA864
New England Fishery Management
Council; Public Meeting
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; public meeting.
AGENCY:
The New England Fishery
Management Council (Council) is
scheduling a public meeting of its Joint
Whiting Oversight and Advisory Panel,
in January, 2012, to consider actions
affecting New England fisheries in the
exclusive economic zone (EEZ).
Recommendations from this group will
be brought to the full Council for formal
consideration and action, if appropriate.
DATES: The meeting will be held on
Wednesday, January 18, 2012 at 10 a.m.
ADDRESSES: The meeting will be held at
the Hotel Providence, 139 Mathewson
Street, Providence, RI 02903: telephone:
(401) 861–8000; fax: (401) 861–8002.
Council address: New England
Fishery Management Council, 50 Water
Street, Mill 2, Newburyport, MA 01950.
FOR FURTHER INFORMATION CONTACT: Paul
J. Howard, Executive Director, New
England Fishery Management Council;
telephone: (978) 465–0492.
SUPPLEMENTARY INFORMATION: The
advisors and committee will review and
revise Draft Amendment 19 which
proposes to implement Annual Catch
Limits and accountability measures. The
committee may also identify preferred
alternatives. If approved at the
January 31–February 2 Council meeting,
public hearings will be held on the final
Draft Amendment 19 document. If
sufficient time exists at this meeting, the
advisors and committee may also
discuss limited access issues that will
be considered in the next amendment.
Although non-emergency issues not
contained in this agenda may come
before this group for discussion, those
issues may not be the subject of formal
action during this meeting. Action will
be restricted to those issues specifically
listed in this notice and any issues
arising after publication of this notice
that require emergency action under
section 305(c) of the Magnuson-Stevens
Fishery Conservation and Management
Act, provided the public has been
notified of the Council’s intent to take
final action to address the emergency.
SUMMARY:
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Special Accommodations
This meeting is physically accessible
to people with disabilities. Requests for
sign language interpretation or other
auxiliary aids should be directed to Paul
J. Howard, Executive Director, at (978)
465–0492, at least 5 days prior to the
meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 8, 2011.
Tracey L. Thompson,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2011–31933 Filed 12–12–11; 8:45 am]
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COUNCIL ON ENVIRONMENTAL
QUALITY
Draft Guidance on Improving the
Process for Preparing Efficient and
Timely Environmental Reviews under
the National Environmental Policy Act
Council on Environmental
Quality.
ACTION: Notice of availability, draft
guidance on improving the process for
preparing efficient and timely
environmental reviews under the
National Environmental Policy Act.
AGENCY:
The Council on
Environmental Quality (CEQ) is issuing
its draft guidance on Improving the
Process for Preparing Efficient and
Timely Environmental Reviews under
the National Environmental Policy Act
for public review and comment. The
National Environmental Policy Act
(NEPA) and CEQ Regulations
implementing NEPA provide numerous
techniques for preparing efficient and
timely environmental reviews. CEQ is
issuing this guidance for Federal
departments and agencies to emphasize
and clarify these techniques, consistent
with a thorough and meaningful
environmental review and keeping in
mind the following basic principles: (1)
NEPA encourages simple,
straightforward, and concise reviews
and documentation that are
proportionate to and effectively convey
the relevant considerations in a timely
manner to the public and
decisionmakers, while comprehensively
addressing the issues presented; (2)
NEPA should be integrated into project
planning rather than be an after-the-fact
add-on; (3) NEPA reviews should
coordinate and take appropriate
advantage of existing documents and
studies, including through adoption and
incorporation by reference; (4) Early and
well-defined scoping can assist in
focusing environmental reviews on
SUMMARY:
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Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices
appropriate issues that would be
meaningful to a decision on the
proposed action; (5) Agencies are
encouraged to develop meaningful and
expeditious timelines for environmental
reviews; and (6) Agencies should
respond to comments in proportion to
the scope and scale of the
environmental issues raised. This
guidance applies to the preparation of
an Environmental Assessment (EA) or
an Environmental Impact Statement
(EIS) consistent with legal precedent
and agency NEPA experience and
practice. This guidance does not change
or substitute for any law, regulations, or
any other legally binding requirement.
Rather, it provides CEQ’s interpretation
of existing regulations promulgated
under NEPA.
DATES: CEQ must receive comments on
or before January 27, 2012.
ADDRESSES: The NEPA Draft Guidance
is available at https://
www.whitehouse.gov/administration/
eop/ceq/initatives/nepa. Comments on
the NEPA Draft Guidance ‘‘Improving
the Process for Preparing Efficient and
Timely Environmental Reviews under
the National Environmental Policy Act’’
should be submitted electronically at
https://www.whitehouse.gov/
administration/eop/ceq/initatives/nepa,
or in writing to The Council on
Environmental Quality, ATTN: Horst
Greczmiel, Associate Director for
National Environmental Policy Act
Oversight, 722 Jackson Place NW.,
Washington, DC 20503.
FOR FURTHER INFORMATION, CONTACT: The
Council on Environmental Quality
(Attn: Horst Greczmiel, Associate
Director for National Environmental
Policy Act Oversight), 722 Jackson Place
NW., Washington, DC 20503.
Telephone: (202) 395–5750.
SUPPLEMENTARY INFORMATION: Enacted in
1970, the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321–
4370, is a fundamental tool used to
harmonize our environmental,
economic, and social aspirations and is
a cornerstone of our Nation’s efforts to
protect the environment. NEPA
recognizes that many Federal activities
affect the environment and mandates
that Federal agencies consider the
environmental impacts of their
proposed actions before deciding to
adopt proposals or take action.1 Our
ongoing review of the CEQ Regulations
confirms the benefits of integrating
planning and environmental reviews,
1 A discussion of NEPA applicability is beyond
the scope of this guidance. For more information
see CEQ, The Citizen’s Guide to the National
Environmental Policy Act, available at
ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
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coordinating multi-agency or multigovernmental reviews and approvals,
and setting clear schedules for preparing
EAs and EISs. This guidance promotes
a sufficient and effective process that is
tailored to avoid excessive burden. This
guidance also reflects CEQ’s continuing
commitment to implement its Plan for
Retrospective Review of Existing
Regulations (Plan) in accordance with
Executive Order 13563.2
The guidance addresses numerous
individual issues associated with the
NEPA review process in a manner that
meets the above-stated goals. The
individual issues addressed include the
use of concise NEPA documents focused
on particular environmental issues, the
integration of NEPA into preliminary
parts of the planning process, and a
more prevalent role of scoping in the
development of NEPA reviews. The
guidance also advises agencies to
collaborate with other government
bodies—including state, local, or
Tribal—and coordinate reviews and
documents with other laws to allow for
greater efficiency. It further explains the
adoption of other Federal agency
reviews, the procedure and ability to
incorporate information contained in
other documents into a review, and the
role of reasonable and proportionate
responses to comments within the
NEPA process. Finally, the guidance
proposes agencies utilize appropriate
time limits to promote efficiency. Thus,
this guidance offers concrete tools for
each step of the NEPA review process,
providing, in sum, a more thorough,
efficient, and informed analysis of
environmental issues.
This guidance provides CEQ’s
interpretation of existing regulations
promulgated under NEPA, and does not
change agencies’ fundamental
obligations with regard to NEPA and the
CEQ Regulations. The draft guidance
document is provided below and is
available at the Council on
Environmental Quality Web site at
https://www.whitehouse.gov/
administration/eop/ceq/initatives/nepa.
For the reasons stated above, CEQ is
seeking public comment on the
following draft guidance, entitled
‘‘Improving the Process for Preparing
Efficient and Timely Environmental
Reviews under the National
Environmental Policy Act.’’
The Draft Guidance: The National
Environmental Policy Act (NEPA)
provides for a wide array of tools for the
efficient and timely conduct of
environmental reviews. The Council on
Environmental Quality (CEQ)
Regulations implementing NEPA
contain a number of opportunities for
achieving this goal. CEQ is issuing this
guidance for Federal departments and
agencies to emphasize and clarify those
opportunities, fully consistent with a
thorough and meaningful environmental
review. The guidance also makes it clear
that many of the provisions of the CEQ
Regulations which specifically refer to
an Environmental Impact Statement
(EIS) can also apply to an
Environmental Assessment (EA). This
guidance applies to the preparation of
an EA or an EIS consistent with legal
precedent and agency NEPA experience
and practice.
In conducting all environmental
reviews pursuant to NEPA, agencies
should use the methods set out in the
CEQ Regulations mindful of the
following basic principles:
• NEPA encourages simple,
straightforward, and concise reviews
and documentation that are
proportionate to and effectively convey
the relevant considerations in a timely
manner to the public and
decisionmakers while comprehensively
addressing the issues presented;
• NEPA should be integrated into
project planning rather than be an afterthe-fact add-on;
• NEPA reviews should coordinate
and take appropriate advantage of
existing documents and studies,
including through adoption and
incorporation by reference;
• Early and well-defined scoping can
assist in focusing environmental
reviews to appropriate issues that would
be meaningful to a decision on the
proposed action;
• Agencies are encouraged to develop
meaningful and expeditious timelines
for environmental reviews; and
• Agencies should respond to
comments in proportion to the scope
and scale of the environmental issues
raised.
This guidance also reflects CEQ’s
continuing commitment to implement
its Plan for Retrospective Review of
Existing Regulations (‘‘Plan’’) in
accordance with Executive Order
13563.3 Our ongoing review of the CEQ
Regulations confirms the benefits of
integrating environmental reviews,
coordinating multi-agency or multigovernmental reviews and approvals,
and setting clear schedules for preparing
EAs and EISs. This guidance promotes
2 ‘‘Improving Regulation and Regulatory Review,’’
Exec. Order 13,563, 76 FR 3821 (January 21, 2011),
available at https://www.gpo.gov/fdsys/pkg/FR-201101-21/pdf/2011-1385.pdf.
3 ‘‘Improving Regulation and Regulatory Review,’’
Exec. Order 13,563, 76 FR 3821 (January 21, 2011),
available at https://www.gpo.gov/fdsys/pkg/FR-201101-21/pdf/2011-1385.pdf.
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a sufficient and effective process that is
tailored to avoid excessive burden. This
guidance provides CEQ’s interpretation
of existing regulations promulgated
under NEPA, and does not change
agencies’ obligations with regard to
NEPA and the CEQ Regulations.4
Introduction and Steps to Date: CEQ
was created by NEPA in 1970 and is
charged with overseeing NEPA
implementation by Federal agencies. In
1978, CEQ issued the CEQ Regulations.5
From time to time, CEQ issues guidance
for the Federal agencies, to clarify the
requirements and applicability of
various provisions of NEPA and the
CEQ Regulations, and to ensure that
those requirements can be met in a
timely and effective fashion.6 These
guidance documents represent CEQ’s
interpretation of NEPA, which the U.S.
Supreme Court has said is ‘‘entitled to
substantial deference.’’ 7
NEPA requires Federal agencies to
consider the potential environmental
consequences of their proposed action,
and any reasonable alternatives, before
deciding whether and in what form to
take an action. Environmental reviews
prepared under NEPA should provide a
decisionmaker with relevant and timely
information, and the CEQ Regulations
make it clear that ‘‘NEPA’s purpose is
not to generate paperwork—even
excellent paperwork—but to foster
excellent action.’’ 8
Complying with NEPA can take three
forms, that of a Categorical Exclusion,
an Environmental Assessment, or an
Environmental Impact Statement:
• Categorical Exclusion (CE): A CE is
a category of actions that is expected not
to have individually or cumulatively
significant environmental impacts.9
Each agency’s procedures for
4 This guidance is not a rule or regulation, and the
recommendations it contains may not apply to a
particular situation based upon the individual facts
and circumstances. This guidance does not change
or substitute for any law, regulations, or any other
legally binding requirement and is not legally
enforceable. The use of non-mandatory terminology
such as ‘‘guidance,’’ ‘‘recommend,’’ ‘‘may,’’
‘‘should,’’ and ‘‘can,’’ is intended to describe CEQ
policies and recommendations. The use of
mandatory terminology such as ‘‘shall,’’ ‘‘must,’’
and ‘‘required’’ is intended to describe controlling
requirements under NEPA and the CEQ
Regulations, but this document does not establish
legally binding requirements in and of itself.
5 40 CFR parts 1500–1508 (The Council on
Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of NEPA
(CEQ Regulations), available on https://www.nepa.
gov at ceq.hss.doe.gov/ceq_regulations/
regulations.html).
6 These guidance documents are available online
at ceq.hss.doe.gov/ceq_regulations/guidance.
7 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
8 40 CFR 1500.1(c).
9 Categorical Exclusions can also be created
legislatively.
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implementing NEPA sets out that
agency’s CEs, which are established
after CEQ and public review. A
proposed action within such a category
is excluded from further analysis and
documentation in an Environmental
Assessment or an Environmental Impact
Statement.10 A CE can be concluded
with a determination that a proposed
action falls within one of the categories
of actions and there are no extraordinary
circumstances indicating further
environmental review is warranted.
• Environmental Assessment (EA):
When a CE is not appropriate and the
agency has not determined whether the
proposed action will cause significant
environmental effects, then an EA is
prepared. If, as a result of the EA, a
Finding of No Significant Impact
(FONSI) is appropriate, then the NEPA
review process is completed with the
FONSI, including documentation of its
basis in the EA; otherwise an
Environmental Impact Statement is
prepared.11
• Environmental Impact Statement
(EIS): The most intensive level of
analysis is the Environmental Impact
Statement, which is typically reserved
for the analysis of proposed actions that
are expected to result in significant
environmental impacts. When an EIS is
prepared, the NEPA review process is
concluded when a record of decision
(ROD) is issued.12
CEQ has been working with agencies
to modernize and reinvigorate NEPA
implementation in several ways. CEQ
issued guidance on the development
and use of Categorical Exclusions in
November 2010.13 Properly developed
and applied, Categorical Exclusions
provide an efficient tool to complete the
NEPA environmental review process for
proposals that normally do not require
a more resource-intensive EA or EIS.
The use of Categorical Exclusions can
reduce paperwork and delay for
proposed actions that do not raise the
potential for significant environmental
effects.14 In January 2011, CEQ provided
guidance that specifically addressed the
appropriate use of a FONSI to conclude
the NEPA review process relying on an
EA. A mitigated FONSI is appropriate
when mitigation is used to avoid or
lessen potentially significant
10 40
CFR 1508.4, 1500.5(k).
CFR 1508.9.
12 40 CFR 1505.2.
13 CEQ Memorandum, ‘‘Establishing, Applying,
and Revising Categorical Exclusions under the
National Environmental Policy Act,’’ November 23,
2010, available at ceq.hss.doe.gov/ceq_regulations/
NEPA_CE_Guidance_Nov232010.pdf.
14 40 CFR 1500.4(p) (recommending use of
categorical exclusions as a tool to reduce
paperwork), 1500.5(k) (recommending categorical
exclusions as a tool to reduce delay).
11 40
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environmental effects of proposed
actions that would otherwise need to be
analyzed in an EIS.15 In addition, in
May 2010, CEQ issued guidance on
ensuring efficient and expeditious
compliance with NEPA when agencies
must take exigent action to protect
human health or safety and valued
resources in a timeframe that does not
allow sufficient time for the normal
NEPA process.16
In August 2011 the President called
for further steps to enhance the efficient
and effective permitting and
environmental review of infrastructure
development ‘‘through such strategies as
integrating planning and environmental
reviews; coordinating multi-agency or
multi-governmental reviews and
approvals to run concurrently; setting
clear schedules for completing steps in
the environmental review and
permitting process; and utilizing
information technologies to inform the
public about the progress of
environmental reviews as well as the
progress of Federal permitting and
review processes.’’17 This guidance sets
forth straightforward ways by which the
CEQ Regulations, properly understood
and applied, support these strategies.
1. Concise NEPA Documents:
Agencies are encouraged to concentrate
on environmental analysis in their EAs
and EISs, not to produce an
encyclopedia of all applicable
information.18 Environmental analysis
should focus on significant issues,
discussing insignificant issues only
briefly.19 Impacts should be discussed
in proportion to their significance, and
if the issues are not deemed significant
there should be only enough discussion
to show why more study is not
warranted.20 Scoping,21 incorporation
by reference,22 and integration of other
15 CEQ Memorandum, ‘‘Appropriate Use of
Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No
Significant Impact,’’ January 14, 2011, available at
ceq.hss.doe.gov/current_developments/docs/
Mitigation_and_Monitoring_Guidance_
14Jan2011.pdf.
16 CEQ Memorandum, ‘‘Emergencies and the
National Environmental Policy Act,’’ May 12, 2010,
available at ceq.hss.doe.gov/ceq_regulations/
Emergencies_and_NEPA_Memorandum_
12May2010.pdf.
17 Presidential Memorandum, ‘‘Speeding
Infrastructure Development through More Efficient
and Effective Permitting and Environmental
Review’’ August 31, 2011, available at https://
www.whitehouse.gov/the-press-office/2011/08/31/
presidential-memorandum-speeding-infrastructuredevelopment-through-more.
18 40 CFR 1500.4(b), 1502.2(b).
19 40 CFR 1502.2(c); see also 40 CFR 1502.2(a)
(‘‘Environmental impact statements shall be
analytic rather than encyclopedic.’’).
20 40 CFR 1502.2(b).
21 40 CFR 1500.4(g).
22 40 CFR 1500.4(j).
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environmental analyses 23 are additional
methods that may be used to avoid
redundant or repetitive discussion of
issues.24
All NEPA environmental documents,
not just EISs, should be written in plain
language,25 follow a clear format, and
emphasize important portions of the
impact analysis over mere background
material. Clarity and consistency ensure
that the substance of the agency’s
analysis is understood clearly, avoiding
unnecessary confusion or risk of
litigation that could result from an
ambiguous or opaque analysis. The CEQ
Regulations indicate that the text of a
final EIS that addresses the purpose and
need, alternatives, affected
environment, and environmental
consequences should normally be less
than 150 pages and a final EIS for
proposals of unusual scope or
complexity should normally be less
than 300 pages.26
In light of the growth of
environmental requirements since the
publication of the CEQ Regulations, and
the desire to use the EIS to address, via
integration, those requirements, it is
recognized that there will be a range of
appropriate lengths of EISs.
Nevertheless, agencies should keep EISs
as concise as possible (continuing to
relegate relevant studies and technical
analyses to appendices) and no longer
than necessary to comply with NEPA
and the other legal and regulatory
requirements being addressed in the
EIS, and to provide decision makers and
the public with the information they
need to assess the significant
environmental effects of the action
under review. Length should vary with
the number, complexity and
significance of potential environmental
problems.27
Similarly, the CEQ guidance issued in
1981 indicated that 10–15 pages is
generally appropriate for EAs.28 This
23 40
CFR 1500.4(k).
generally 40 CFR 1502.2 (EISs should be
written in plain language so that decisionmakers
and the public can understand them).
25 40 CFR 1502.8.
26 40 CFR 1502.7.
27 40 CFR 1502.2(c) (length should vary first with
potential environmental problems and then with
project size).
28 CEQ Memorandum to Agencies, ‘‘Forty Most
Asked Questions Concerning CEQ’s National
Environmental Policy Act Regulations’’ (Question
and Answer 36a), March 16, 1981, available at
https://ceq.hss.doe.gov/nepa/regs/40/30–40.HTM
#36. Note that at the time of this memorandum CEQ
was of the opinion that mitigated Findings of No
Significant Impact were only appropriate if the
mitigation measures were imposed by statute or
regulation, or submitted by an applicant or agency
as part of the original proposal (Question & Answer
40). CEQ has since published guidance accepting
mitigated FONSIs as another means of efficiently
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24 See
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guidance must be balanced with the
requirement to take a hard look at the
impacts of the proposed action. As with
EISs, an EA’s length should vary with
the scope and scale of potential
environmental problems, rather than
just with the scope and scale of the
proposed action.29 The EA should be no
more elaborate than necessary to fulfill
the functions and goals set out in the
CEQ Regulations: (1) Briefly provide
sufficient evidence and analysis for
determining whether to prepare an EIS;
(2) aid an agency’s compliance with
NEPA when no EIS is necessary, i.e., the
EA helps to identify and analyze better
alternatives and mitigation measures;
and (3) facilitate preparation of an EIS
when one is necessary.30
2. Early NEPA Integration in
Planning: An agency should first
consider integrating the NEPA process
into planning when it structures its
internal process for developing a
proposed policy, program, management
plan, or project. Agencies must integrate
the NEPA process into their planning at
the earliest possible time to ensure that
planning and decisions reflect
environmental values, avoid delays later
in the process, and anticipate and
attempt to resolve potential issues.31
NEPA should not become an after-thefact process that justifies decisions that
have entirely, or in large part, already
been made.32
The CEQ Regulations emphasize early
NEPA planning in the context of an EIS.
The scoping process can be used before
a notice of intent to seek useful
information on a proposal from agencies
and the public.33 For example, agencies
can commence the process to prepare an
EIS during the early stages of
development of a proposal, to ensure
that the environmental analysis can be
completed in time for the agency to
consider the final EIS before making a
decision on the proposal.34 Further, an
concluding the NEPA process without producing an
EIS (‘‘Appropriate Use of Mitigation and Monitoring
and Clarifying the Appropriate Use of Mitigated
Findings of No Significant Impact,’’ November 23,
2010, available at https://ceq.hss.doe.gov/current_
developments/docs/Mitigation_and_Monitoring_
Guidance_14Jan2011.pdf.
29 40 CFR 1508.9 (The EA is ‘‘a concise public
document’’); 40 CFR 1502.2(c) (interpreting the
conciseness requirement for an EIS to mean that
‘‘length should vary first with potential
environmental problems and then with project
size’’).
30 40 CFR 1508.9(a).
31 40 CFR 1501.2.
32 40 CFR 1502.2(g).
33 CEQ Memorandum to Agencies, ‘‘Forty Most
Asked Questions Concerning CEQ’s National
Environmental Policy Act Regulations’’ (Question
and Answer 13), March 16, 1981 available at
ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13.
34 40 CFR 1508.23 (A proposal exists as soon as
an agency has a goal, is developing one or more
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77495
agency shall prepare an EIS so that it
can inform the decisionmaking process
in a timely manner ‘‘and will not be
used to rationalize or justify decisions
already made.’’35
If agencies are to prepare efficient
EAs, then they should adhere to these
same principles and ensure that the EA
is prepared in conjunction with the
development of the proposed action,
and in time to inform the public and the
decisionmaker. Agencies should review
their NEPA implementing procedures as
well as their NEPA practices to ensure
that NEPA is integrated into overall
project management to the fullest extent
possible whether the agencies are
preparing an EA or an EIS.
The CEQ Regulations call upon
agencies to provide for situations where
the initial planning process is in the
hands of an applicant or other nonFederal entity.36 The Regulations
require Federal agencies to address
these situations in their NEPA
implementing procedures.37
Consequently, agencies that have a
reasonably foreseeable role in actions
that are initially developed by private
applicants or other non-Federal entities
must plan for those situations. The
NEPA implementing procedures for
such agencies must provide access to
designated staff or the policies that can
inform applicants and other non-Federal
alternatives to achieve that goal, and the effects can
be meaningfully evaluated).
35 40 CFR 1502.5. For guidelines specific to
different agency activities, see 40 CFR 1502.5(a)—
(d). Misuse of the NEPA process to justify decisions
already made is counterproductive and can result
in litigation that could delay and ultimately prevent
a proposed action from proceeding.
36 40 CFR 1501.2(d) (non-Federal entities plan
activities prior to Federal involvement that trigger
NEPA requirements).
37 40 CFR 1507.3(b)(1). All agencies are required
to adopt procedures that supplement the CEQ
Regulations and provide NEPA implementing
guidance that both provides agency personnel with
additional, more specific direction for
implementing the procedural provisions of NEPA
and informs the public and State and local officials
of how the CEQ Regulations will be implemented
in agency decisionmaking. Agency procedures
should therefore provide Federal personnel with
the direction they need to implement NEPA on a
day-to-day basis. The procedures must also provide
a clear and uncomplicated picture of what those
outside the Federal government may do to become
involved in the environmental review process
under NEPA. See CEQ Memorandum, ‘‘Agency
Implementing Procedures Under CEQ’s NEPA
Regulations,’’ January 19, 1979 available at ceq.hss.
doe.gov/nepa/regs/exec11979.html. Some examples
of agency NEPA implementing procedures are the
Department of the Interior Department Manual,
National Park Service, ‘‘Managing the NEPA
Process,’’ May 27, 2004, available at https://
206.131.241.18/app_dm/act_getfiles.cfm?relnum=
3622 and the Department of the Interior Department
Manual, Bureau of Land Management, ‘‘Managing
the NEPA Process,’’ May 8, 2008, available at
https://elips.doi.gov/app_dm/act_
getfiles.cfm?relnum=3799.
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entities of studies or other information
foreseeably required for later Federal
action.38
Advanced planning for initially nonFederal actions must also ensure that
the Federal agency is able to initiate
early consultation with appropriate
Tribes, States, local agencies, and
interested private persons and
organizations when Federal
involvement is reasonably foreseeable.39
For actions initiated at the request of a
non-Federal entity, Federal agencies
should begin the NEPA process for
preparing their EA or EIS as early as
possible but no later than upon receipt
of a complete application.40 Federal
agencies should, whenever possible,
guide applicants to gather and develop
the appropriate level of information and
analyses in advance of submitting an
application or other request for federal
agency action. For example, several
agencies require an applicant to prepare
and submit an environmental report to
help prepare the NEPA analyses and
documentation and facilitate the lead
agency’s independent environmental
review of the proposal.
3. Scoping: To effectuate integration,
avoid duplication, and focus the NEPA
review, the CEQ Regulations provide for
‘‘scoping.’’ 41 In scoping, the lead agency
determines the issues that its EA or EIS
will address and identifies the
significant issues related to the
proposed action that will be considered
in the analysis.42 To increase efficiency,
the lead agency can solicit cooperation
at the earliest possible time from other
agencies that have jurisdiction by law or
special expertise on any environmental
issue that should be considered.
Cooperating agencies with jurisdiction
by law or special expertise can work
with the lead agency to ensure that,
whenever possible, one NEPA review
process informs all the decisions needed
to determine whether and, if so, how a
proposed action will proceed.43
38 40
CFR 1501.2(d)(1).
CFR 1501.2(d)(2). Agencies should be
cognizant of their obligations under current
Executive Orders 13175 (Consultation and
Coordination with Indian Tribal Governments, Nov
6, 2000) and 112898 (Federal Actions to Address
Environmental Justice in Minority Populations and
Low-Income Populations, Feb 11, 1994), available
at ceq.hss.doe.gov/laws_and_executive_orders/
executive_orders.html.
40 40 CFR 1501.2(d)(3).
41 40 CFR 1501.7 (‘‘There shall be an early and
open process for determining the scope of issues to
be addressed and for identifying the significant
issues related to a proposed action. This process
shall be termed scoping.’’)
42 40 CFR 1500.4(b), (g) and 1501.7.
43 40 CFR 1501.6, 1508.5 (responsibilities of the
lead agency include the requirement to request the
participation of any other Federal agency which has
jurisdiction by law). Previous guidance on engaging
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39 40
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The CEQ Regulations explicitly
address the role of scoping in
preparation of an EIS. Agencies can also
choose to take advantage of scoping
when preparing an EA that deals with
uncertainty or controversy regarding
potential conflicts over the use of
resources or the environmental effects of
the proposed action. For example, a lead
agency preparing such an EA may use
scoping to identify and eliminate from
detailed study the issues that are not
significant or that have been covered by
prior environmental review.44 The
scoping process provides a transparent
way to identify significant
environmental issues and to
deemphasize insignificant issues,45
thereby focusing the analysis on the
most pertinent issues and impacts.46
The scoping process can be
particularly helpful in identifying
opportunities to coordinate reviews and
related surveys and studies required by
other laws or by executive orders.
Scoping should also be used to begin
inter- and intra-governmental
coordination if it is not already ongoing.
To accomplish these goals, the lead
agency preparing an EA or an EIS can
choose to invite the participation of
affected Federal, State, and local
agencies, any affected Indian tribe, the
proponent of the action, and ‘‘other
interested persons (including those who
might not be in accord with the action
on environmental grounds).’’ 47 In
addition to facilitating coordination and
the development of required
environmental reviews, scoping will
help to identify the universe of matters
that need to be addressed with
particular care and flag issues for
thorough consideration, thereby
defusing potential conflict that, absent
early attention, could arise later and
other agencies with jurisdiction over permits and
other approvals required for a proposal to proceed
include: CEQ Memorandum for Heads of Federal
Agencies, ‘‘Cooperating Agencies in Implementing
the Procedural Requirements of the National
Environmental Policy Act’’ (January 30, 2002),
available at ceq.hss.doe.gov/nepa/regs/cooperating/
cooperatingagenciesmemorandum.html; and CEQ
Memorandum to Agencies, ‘‘Forty Most Asked
Questions Concerning CEQ’s National
Environmental Policy Act Regulations’’ (Question
and Answer 14), March 16, 1981 available at
ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14.
44 40 CFR 1501.7(a)(3).
45 40 CFR 1500.4(g).
46 40 CFR 1501.4(b) (agencies are to involve the
public in the preparation of EAs; the manner in
which they do so is left to the agency).
47 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6.
Establishing cooperating agency status is discussed
in greater detail in the CEQ Memorandum for Heads
of Federal Agencies, ‘‘Cooperating Agencies in
Implementing the Procedural Requirements of the
National Environmental Policy Act,’’ 30 January
2002 available at ceq.hss.doe.gov/nepa/regs/
cooperating/
cooperatingagenciesmemorandum.html.
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potentially delay the timely completion
of the relevant NEPA review.48
In sum, the scoping process provides
an early opportunity to plan
collaboration with other governments,49
assign responsibilities,50 and develop
the planning and decisionmaking
schedule.51 It also affords lead agencies
the option of setting page limits for
environmental documents and setting
time limits for the steps in the NEPA
process.52 Agencies may also choose to
use scoping whenever any of these
techniques can provide for the more
effective and efficient preparation of an
EA.
4. Inter-Governmental Coordination
(State, Local, or Tribal Environmental
Reviews): CEQ encourages Federal
agencies to collaborate with Tribal,
State, and local governments to the
fullest extent possible to reduce
duplication, unless the agencies are
specifically barred from doing so by
some other law.53 The CEQ Regulations
explicitly provide for agencies to
conduct joint planning processes, joint
environmental research and studies,
joint public hearings (except where
otherwise provided by statute), and joint
environmental assessments.54 Federal
agencies should explore every
reasonable opportunity to integrate the
requirements of NEPA with the external
planning and environmental reviews
required on the Federal as well as the
State, Tribal, and local levels of
48 In cases where a Federal agency uses scoping
for an EA and subsequently determines it is
necessary to conduct an EIS, the agency should
refer to the guidance provided in the CEQ
Memorandum to Agencies, ‘‘Forty Most Asked
Questions Concerning CEQ’s National
Environmental Policy Act Regulations’’ (Question
and Answer 13), March 16, 1981, available at
https://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13
(scoping that is done before the assessment, and in
aid of its preparation, cannot substitute for the
normal scoping process after publication of the
NOI, unless the earlier public notice stated clearly
that this possibility was under consideration, and
the NOI expressly provides that written comments
on the scope of alternatives and impacts will still
be considered).
49 40 CFR 1501.6 and 1508.5. CEQ has published
guidance encouraging lead agencies to establish a
formal cooperating agency relationship with other
Federal agencies as well as State, Tribal, and local
governmental entities. CEQ memorandum,
‘‘Cooperating Agencies in Implementing the
Procedural Requirements of the National
Environmental Policy Act,’’ January 30, 2002,
available at ceq.hss.doe.gov/nepa/regs/cooperating/
cooperatingagenciesmemorandum.html.
50 40 CFR 1501.7(a)(4) (a lead agency may allocate
responsibility for EIS preparation and analysis
among cooperating agencies during scoping).
51 40 CFR 1501.7(a)(7).
52 40 CFR 1501.7(b)(1)–(2), 1501.8.
53 40 CFR 1506.2(b).
54 40 CFR 1506.2(b); see also 40 CFR 1500.4(n)
(encouraging Federal agencies to eliminate
duplication with State and local procedures, by
providing for joint preparation).
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government so that those reviews can
run concurrently rather than
consecutively.55
Where State law or local ordinances
contain environmental impact analysis
and documentation requirements in
addition to, but not in conflict with,
those in NEPA, the CEQ Regulations
provide authority for producing joint
EISs.56 In such cases, Federal agencies
shall cooperate in fulfilling the State,
Tribal, and local environmental impact
analysis and documentation
requirements as well as the
requirements of other environmental
laws so that one document will suffice
for complying with as many applicable
laws as practicable. Federal agencies
should seek efficiencies and avoid delay
by attempting to meet applicable nonFederal NEPA-like requirements in
conjunction with either an EA or an EIS
wherever possible.
The CEQ Regulations also require that
a Federal agency preparing an EIS better
integrate the EIS into non-Federal
planning processes by discussing and
explaining any inconsistency of a
proposed Federal action with any
approved State or local plan and laws.57
When preparing an EA or EIS, if an
inconsistency with any approved Tribal,
State, or local plan or laws exists, the
Federal agency should describe the
extent to which it will reconcile its
proposed action with the non-Federal
plan or law.58
5. Coordinating Reviews and
Documents Under Other Applicable
Laws: Agencies must integrate, to the
fullest extent possible, their draft EIS
with environmental impact analyses
and related surveys and studies required
by other laws or by executive order.59
Coordinated and concurrent
environmental reviews are appropriate
whenever other analyses, surveys, and
studies will consider the same issues
and information as a NEPA analysis.
Such coordination should be considered
when preparing an EA as well as when
preparing an EIS.
The goal should be to conduct
concurrent rather than sequential
processes whenever appropriate. In
situations where one aspect of a project
is within the particular expertise or
jurisdiction of another agency an agency
should consider whether adoption or
55 40 CFR 1500.2(c). This point is reiterated
throughout the CEQ Regulations.
56 40 CFR 1506.2(c).
57 40 CFR 1506.2(d).
58 40 CFR 1506.2(d).
59 40 CFR 1502.25(a). Examples provided in the
Regulation are: the Fish and Wildlife Coordination
Act (16 U.S.C. 661 et seq.); the National Historic
Preservation Act (16 U.S.C. 470 et seq.); and the
Endangered Species Act (16 U.S.C. 1531 et seq.).
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incorporation by reference of materials
prepared by the other agency would be
more efficient.
A coordinated or concurrent process
may provide a better basis for informed
decision making, or at least achieve the
same result as separate or consecutive
processes while avoiding unnecessary
duplication of effort. In addition to
integrating the reviews and analyses, the
CEQ Regulations also state that any
environmental document that complies
with NEPA may be combined with any
other agency document to reduce
duplication and paperwork.60
6. Adoption: The adoption of one
Federal agency’s EIS, or a portion of that
EIS, by another Federal agency is an
efficiency that the CEQ Regulations
provide.61 An agency preparing an EA
should similarly consider adopting
another agency’s EA when the EA or a
portion thereof addresses the proposed
action and meets the standards for an
adequate EA under NEPA, the CEQ’s
Regulations, and the adopting agency’s
NEPA implementing procedures.
The CEQ Regulations require agencies
to involve agencies, applicants and the
public; however, they do not require
agencies to prepare a draft EA and
circulate a draft or final EA for public
review or comment.62 If an agency’s
implementing NEPA procedures
establish requirements for public review
and comment when preparing an EA,
however, then the adopting agency must
provide a similar process when it adopts
the preparing agency’s EA.
In those cases where the adopting
agency is also a cooperating agency in
the preparation of an EIS, it may adopt
the lead agency’s EIS without additional
public involvement when, after an
independent review, it concludes that
the lead agency has adequately
addressed the adopting agency’s
comments and suggestions.63 Similarly,
when the adopting agency was a
cooperating agency in the preparation of
an EA, it may adopt the EA without
additional public involvement.
7. Incorporation by Reference:
Incorporation by reference is another
method that provides efficiency and
timesaving when preparing either an EA
or an EIS. The CEQ Regulations direct
agencies to incorporate material into an
EIS by reference to reduce the size of the
EIS and avoid duplicative effort.64 An
agency must cite the incorporated
material in an EIS and briefly describe
60 40
CFR 1506.4; see also 40 CFR 1500.4(k), (n).
CFR 1506.3.
62 40 CFR 1501.4(b) and 1506.6 (Agencies are to
involve the public in the preparation of EAs, the
manner in which they do so is left to the agency).
63 40 CFR 1506.3(c).
64 40 CFR 1502.21.
61 40
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77497
the content.65 An agency may not
incorporate any material by reference in
an EIS unless the material is reasonably
available for inspection by potentially
interested persons within the time
allowed for comment.66 Agencies can,
consistent with NEPA and the CEQ
Regulations, incorporate documents into
an EA by reference provided the content
has been briefly described and the
materials are reasonably available for
review by interested parties.
8. Expediting Responses to
Comments: Agencies should provide a
reasonable and proportionate response
to comments on a draft EIS by focusing
on the environmental issues and
information conveyed by the comments.
When preparing a final EIS, if the draft
EIS complies with NEPA, CEQ
regulations, and agency implementing
procedures, the agency may use the
draft EIS as the final EIS under certain
conditions. If changes in response to
comments are minor and are limited to
factual corrections and/or explanations
of why the comments do not warrant
further agency response, agencies may
write them on errata sheets and attach
them to the statement instead of
rewriting the draft statement.67 In such
cases, the agency must circulate only
the comments, the responses and the
changes, and not the final statement.68
Only the comments, responses, and
changes need be filed with the draft
document and a new cover sheet to
make the EIS final, under those
circumstances.69 Similarly, if an agency
issues an EA for comment and the
changes in response to comments are
minor and limited to factual corrections
and/or explanations of why the
comments do not warrant further agency
response, then the agency may prepare
a similar cover and errata sheet and use
its draft EA as the final EA.
9. Clear Time Lines for NEPA
Reviews: Establishing appropriate time
limits promotes the efficiency of the
NEPA process.70 The CEQ Regulations
do not prescribe universal time limits
for the entire NEPA process; instead
they set certain minimum time limits for
the various portions of the NEPA
process.71 The CEQ Regulations do
65 40
CFR 1502.21.
CFR 1502.21 (material based on proprietary
data which is itself not available for review and
comment cannot be incorporated by reference).
67 40 CFR 1503.4(c); see also 40 CFR 1500.4(m).
68 40 CFR 1503.4(c).
69 40 CFR 1503.4(c).
70 40 CFR 1500.5(e).
71 40 CFR 1506.10 (setting 90 day time period
between EPA publication of the notice of
availability of a draft EIS and the Record of
Decision, 30 day time period between EPA
publication of the notice of availability of a final
66 40
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encourage Federal agencies to set
appropriate time limits for individual
actions, however, and provide a list of
factors to consider in establishing
timelines.72 Those factors include: the
potential for environmental harm; the
size of the proposed action; other time
limits imposed on the action by other
laws, regulations, or executive orders;
and the degree of public need for the
proposed action and the consequences
of delay. The CEQ Regulations refer to
the EIS process when describing the
‘‘constituent parts of the NEPA process’’
to which time limits may apply, require
agencies to set time limits at the request
of an applicant, and allow agencies to
set time limits at the request of other
interested parties.73 It is entirely
consistent with the purposes and goals
of NEPA and with the CEQ Regulations
for agencies to also determine
appropriate time limits for the EA
process when requested by applicants,
Tribes, States, local agencies, or
members of the public.
Conclusion: This guidance describes
methods provided in the CEQ
regulations that agencies preparing an
EA or an EIS may employ to prepare
concise and timely NEPA reviews.
Using methods such as integrating
planning and environmental reviews
and permitting, coordinating multiagency or multi-governmental reviews
and approvals, and setting schedules for
completing the environmental review
will assist agencies in preparing
efficient and timely EAs and EISs
consistent with legal precedent and
agency NEPA experience and practice.
[FR Doc. 2011–31983 Filed 12–12–11; 8:45 am]
BILLING CODE 3225–F2–P
DEPARTMENT OF DEFENSE
Department of the Air Force
[Docket ID: USAF–2011–0028]
Privacy Act of 1974; System of
Records
Department of the Air Force,
Department of Defense (DoD).
ACTION: Notice to alter a system of
records.
srobinson on DSK4SPTVN1PROD with NOTICES
AGENCY:
The Department of the Air
Force proposes to alter a system of
SUMMARY:
EIS and the Record of Decision, and 45 days for
comment on a draft EIS).
72 40 CFR 1501.8 (CEQ encourages Federal
agencies to set time limits consistent with the time
intervals required by § 1506.10).
73 40 CFR 1501.8(a) and (c).
16:25 Dec 12, 2011
The proposed action will be
effective on January 12, 2012 unless
comments are received that would
result in a contrary determination.
DATES:
You may submit comments,
identified by docket number and title,
by any of the following methods:
Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 4800 Mark Center Drive,
East Tower, 2nd Floor, Suite 02G09,
Alexandria, VA 22350–3100.
Instructions: All submissions received
must include the agency name and
docket number for this Federal Register
document. The general policy for
comments and other submissions from
members of the public is to make these
submissions available for public
viewing on the Internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
ADDRESSES:
Mr.
Charles J. Shedrick, Department of the
Air Force Privacy Office, Air Force
Privacy Act Office, Office of Warfighting
Integration and Chief Information
officer, ATTN: SAF/CIO A6, 1800 Air
Force Pentagon, Washington DC 20330–
1800, or by phone at (202) 404–6575.
FOR FURTHER INFORMATION CONTACT:
The
Department of the Air Force’s notices
for systems of records subject to the
Privacy Act of 1974 (5 U.S.C. 552a), as
amended, have been published in the
Federal Register and are available from
the address in FOR FURTHER INFORMATION
CONTACT.
The proposed systems reports, as
required by 5 U.S.C. 552a(r) of the
Privacy Act, were submitted on
December 6, 2011 to the House
Committee on Oversight and
Government Reform, the Senate
Committee on Homeland Security and
Governmental Affairs, and the Office of
Management and Budget (OMB)
pursuant to paragraph 4c of Appendix I
to OMB Circular No. A–130, ‘‘Federal
Agency Responsibilities for Maintaining
Records About Individuals,’’ dated
February 8, 1996, (February 20, 1996, 61
FR 6427).
SUPPLEMENTARY INFORMATION:
Nancy H. Sutley,
Chair.
VerDate Mar<15>2010
records to its inventory of record
systems subject to the Privacy Act of
1974 (5 U.S.C. 552a), as amended.
Jkt 226001
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Dated: December 7, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
F044 AF SG E
SYSTEM NAME:
Medical Record System (June 18,
2010, 75 FR 34709).
CHANGES:
Change System ID to read ‘‘F044 F SG
E.’’
SYSTEM NAME:
Delete entry and replace with
‘‘Electronic Medical Records System.’’
SYSTEM LOCATION:
Delete entry and replace with
‘‘Headquarters, United States Air Force,
Surgeon General (HQ USAF/SG), Air
Force Medical Service Chief Information
Officer’s Office (AFMS CIO’s office),
5201 Leesburg Pike, Suite 1501, Falls
Church, VA 22041–3214.’’
CATEGORIES OF INDIVIDUALS COVERED BY THE
SYSTEM:
Delete entry and replace with
‘‘Uniformed services medical
beneficiaries enrolled in the Defense
Enrollment Eligibility Reporting System
(DEERS) who receive or have received
medical care at one or more of DoD’s
medical treatment facilities (MTFs),
Uniformed Services Treatment Facilities
(USTFs), or care provided under
TRICARE programs. Uniformed services
medical beneficiaries who receive or
have received care at one or more dental
treatment facilities or other system
locations including medical aid stations,
Educational and Developmental
Intervention Services clinics and
Service Medical Commands. Uniformed
service members serving in a deployed
status and those who receive or received
care through the Department of Veterans
Affairs (VA).’’
CATEGORIES OF RECORDS IN THE SYSTEM:
Delete entry and replace with ‘‘Full
name, Social Security Number (SSN) or
Military Service Number, date treatment
was provided, name of facility
providing treatment, inpatient,
outpatient, and ambulatory procedure
visit (APV) records of care received in
Air Force medical facilities.
Documentation includes: Patient’s
medical history, physical examination,
treatment received; supporting
documentation, such as laboratory and
x-ray reports, cover sheets and
summaries of hospitalization, diagnoses,
procedures or surgery performed,
administrative forms which concern
medical conditions, such as Line of
E:\FR\FM\13DEN1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Notices]
[Pages 77492-77498]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31983]
=======================================================================
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
Draft Guidance on Improving the Process for Preparing Efficient
and Timely Environmental Reviews under the National Environmental
Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Notice of availability, draft guidance on improving the process
for preparing efficient and timely environmental reviews under the
National Environmental Policy Act.
-----------------------------------------------------------------------
SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
draft guidance on Improving the Process for Preparing Efficient and
Timely Environmental Reviews under the National Environmental Policy
Act for public review and comment. The National Environmental Policy
Act (NEPA) and CEQ Regulations implementing NEPA provide numerous
techniques for preparing efficient and timely environmental reviews.
CEQ is issuing this guidance for Federal departments and agencies to
emphasize and clarify these techniques, consistent with a thorough and
meaningful environmental review and keeping in mind the following basic
principles: (1) NEPA encourages simple, straightforward, and concise
reviews and documentation that are proportionate to and effectively
convey the relevant considerations in a timely manner to the public and
decisionmakers, while comprehensively addressing the issues presented;
(2) NEPA should be integrated into project planning rather than be an
after-the-fact add-on; (3) NEPA reviews should coordinate and take
appropriate advantage of existing documents and studies, including
through adoption and incorporation by reference; (4) Early and well-
defined scoping can assist in focusing environmental reviews on
[[Page 77493]]
appropriate issues that would be meaningful to a decision on the
proposed action; (5) Agencies are encouraged to develop meaningful and
expeditious timelines for environmental reviews; and (6) Agencies
should respond to comments in proportion to the scope and scale of the
environmental issues raised. This guidance applies to the preparation
of an Environmental Assessment (EA) or an Environmental Impact
Statement (EIS) consistent with legal precedent and agency NEPA
experience and practice. This guidance does not change or substitute
for any law, regulations, or any other legally binding requirement.
Rather, it provides CEQ's interpretation of existing regulations
promulgated under NEPA.
DATES: CEQ must receive comments on or before January 27, 2012.
ADDRESSES: The NEPA Draft Guidance is available at https://www.whitehouse.gov/administration/eop/ceq/initatives/nepa. Comments on
the NEPA Draft Guidance ``Improving the Process for Preparing Efficient
and Timely Environmental Reviews under the National Environmental
Policy Act'' should be submitted electronically at https://www.whitehouse.gov/administration/eop/ceq/initatives/nepa, or in
writing to The Council on Environmental Quality, ATTN: Horst Greczmiel,
Associate Director for National Environmental Policy Act Oversight, 722
Jackson Place NW., Washington, DC 20503.
FOR FURTHER INFORMATION, CONTACT: The Council on Environmental Quality
(Attn: Horst Greczmiel, Associate Director for National Environmental
Policy Act Oversight), 722 Jackson Place NW., Washington, DC 20503.
Telephone: (202) 395-5750.
SUPPLEMENTARY INFORMATION: Enacted in 1970, the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4370, is a fundamental tool used to
harmonize our environmental, economic, and social aspirations and is a
cornerstone of our Nation's efforts to protect the environment. NEPA
recognizes that many Federal activities affect the environment and
mandates that Federal agencies consider the environmental impacts of
their proposed actions before deciding to adopt proposals or take
action.\1\ Our ongoing review of the CEQ Regulations confirms the
benefits of integrating planning and environmental reviews,
coordinating multi-agency or multi-governmental reviews and approvals,
and setting clear schedules for preparing EAs and EISs. This guidance
promotes a sufficient and effective process that is tailored to avoid
excessive burden. This guidance also reflects CEQ's continuing
commitment to implement its Plan for Retrospective Review of Existing
Regulations (Plan) in accordance with Executive Order 13563.\2\
---------------------------------------------------------------------------
\1\ A discussion of NEPA applicability is beyond the scope of
this guidance. For more information see CEQ, The Citizen's Guide to
the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
\2\ ``Improving Regulation and Regulatory Review,'' Exec. Order
13,563, 76 FR 3821 (January 21, 2011), available at https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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The guidance addresses numerous individual issues associated with
the NEPA review process in a manner that meets the above-stated goals.
The individual issues addressed include the use of concise NEPA
documents focused on particular environmental issues, the integration
of NEPA into preliminary parts of the planning process, and a more
prevalent role of scoping in the development of NEPA reviews. The
guidance also advises agencies to collaborate with other government
bodies--including state, local, or Tribal--and coordinate reviews and
documents with other laws to allow for greater efficiency. It further
explains the adoption of other Federal agency reviews, the procedure
and ability to incorporate information contained in other documents
into a review, and the role of reasonable and proportionate responses
to comments within the NEPA process. Finally, the guidance proposes
agencies utilize appropriate time limits to promote efficiency. Thus,
this guidance offers concrete tools for each step of the NEPA review
process, providing, in sum, a more thorough, efficient, and informed
analysis of environmental issues.
This guidance provides CEQ's interpretation of existing regulations
promulgated under NEPA, and does not change agencies' fundamental
obligations with regard to NEPA and the CEQ Regulations. The draft
guidance document is provided below and is available at the Council on
Environmental Quality Web site at https://www.whitehouse.gov/administration/eop/ceq/initatives/nepa.
For the reasons stated above, CEQ is seeking public comment on the
following draft guidance, entitled ``Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the National
Environmental Policy Act.''
The Draft Guidance: The National Environmental Policy Act (NEPA)
provides for a wide array of tools for the efficient and timely conduct
of environmental reviews. The Council on Environmental Quality (CEQ)
Regulations implementing NEPA contain a number of opportunities for
achieving this goal. CEQ is issuing this guidance for Federal
departments and agencies to emphasize and clarify those opportunities,
fully consistent with a thorough and meaningful environmental review.
The guidance also makes it clear that many of the provisions of the CEQ
Regulations which specifically refer to an Environmental Impact
Statement (EIS) can also apply to an Environmental Assessment (EA).
This guidance applies to the preparation of an EA or an EIS consistent
with legal precedent and agency NEPA experience and practice.
In conducting all environmental reviews pursuant to NEPA, agencies
should use the methods set out in the CEQ Regulations mindful of the
following basic principles:
NEPA encourages simple, straightforward, and concise
reviews and documentation that are proportionate to and effectively
convey the relevant considerations in a timely manner to the public and
decisionmakers while comprehensively addressing the issues presented;
NEPA should be integrated into project planning rather
than be an after-the-fact add-on;
NEPA reviews should coordinate and take appropriate
advantage of existing documents and studies, including through adoption
and incorporation by reference;
Early and well-defined scoping can assist in focusing
environmental reviews to appropriate issues that would be meaningful to
a decision on the proposed action;
Agencies are encouraged to develop meaningful and
expeditious timelines for environmental reviews; and
Agencies should respond to comments in proportion to the
scope and scale of the environmental issues raised.
This guidance also reflects CEQ's continuing commitment to
implement its Plan for Retrospective Review of Existing Regulations
(``Plan'') in accordance with Executive Order 13563.\3\ Our ongoing
review of the CEQ Regulations confirms the benefits of integrating
environmental reviews, coordinating multi-agency or multi-governmental
reviews and approvals, and setting clear schedules for preparing EAs
and EISs. This guidance promotes
[[Page 77494]]
a sufficient and effective process that is tailored to avoid excessive
burden. This guidance provides CEQ's interpretation of existing
regulations promulgated under NEPA, and does not change agencies'
obligations with regard to NEPA and the CEQ Regulations.\4\
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\3\ ``Improving Regulation and Regulatory Review,'' Exec. Order
13,563, 76 FR 3821 (January 21, 2011), available at https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
\4\ This guidance is not a rule or regulation, and the
recommendations it contains may not apply to a particular situation
based upon the individual facts and circumstances. This guidance
does not change or substitute for any law, regulations, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory terminology such as ``guidance,'' ``recommend,''
``may,'' ``should,'' and ``can,'' is intended to describe CEQ
policies and recommendations. The use of mandatory terminology such
as ``shall,'' ``must,'' and ``required'' is intended to describe
controlling requirements under NEPA and the CEQ Regulations, but
this document does not establish legally binding requirements in and
of itself.
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Introduction and Steps to Date: CEQ was created by NEPA in 1970 and
is charged with overseeing NEPA implementation by Federal agencies. In
1978, CEQ issued the CEQ Regulations.\5\ From time to time, CEQ issues
guidance for the Federal agencies, to clarify the requirements and
applicability of various provisions of NEPA and the CEQ Regulations,
and to ensure that those requirements can be met in a timely and
effective fashion.\6\ These guidance documents represent CEQ's
interpretation of NEPA, which the U.S. Supreme Court has said is
``entitled to substantial deference.'' \7\
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\5\ 40 CFR parts 1500-1508 (The Council on Environmental Quality
(CEQ) Regulations for Implementing the Procedural Provisions of NEPA
(CEQ Regulations), available on https://www.nepa.gov at
ceq.hss.doe.gov/ceq_regulations/regulations.html).
\6\ These guidance documents are available online at
ceq.hss.doe.gov/ceq_regulations/guidance.
\7\ Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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NEPA requires Federal agencies to consider the potential
environmental consequences of their proposed action, and any reasonable
alternatives, before deciding whether and in what form to take an
action. Environmental reviews prepared under NEPA should provide a
decisionmaker with relevant and timely information, and the CEQ
Regulations make it clear that ``NEPA's purpose is not to generate
paperwork--even excellent paperwork--but to foster excellent action.''
\8\
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\8\ 40 CFR 1500.1(c).
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Complying with NEPA can take three forms, that of a Categorical
Exclusion, an Environmental Assessment, or an Environmental Impact
Statement:
Categorical Exclusion (CE): A CE is a category of actions
that is expected not to have individually or cumulatively significant
environmental impacts.\9\ Each agency's procedures for implementing
NEPA sets out that agency's CEs, which are established after CEQ and
public review. A proposed action within such a category is excluded
from further analysis and documentation in an Environmental Assessment
or an Environmental Impact Statement.\10\ A CE can be concluded with a
determination that a proposed action falls within one of the categories
of actions and there are no extraordinary circumstances indicating
further environmental review is warranted.
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\9\ Categorical Exclusions can also be created legislatively.
\10\ 40 CFR 1508.4, 1500.5(k).
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Environmental Assessment (EA): When a CE is not
appropriate and the agency has not determined whether the proposed
action will cause significant environmental effects, then an EA is
prepared. If, as a result of the EA, a Finding of No Significant Impact
(FONSI) is appropriate, then the NEPA review process is completed with
the FONSI, including documentation of its basis in the EA; otherwise an
Environmental Impact Statement is prepared.\11\
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\11\ 40 CFR 1508.9.
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Environmental Impact Statement (EIS): The most intensive
level of analysis is the Environmental Impact Statement, which is
typically reserved for the analysis of proposed actions that are
expected to result in significant environmental impacts. When an EIS is
prepared, the NEPA review process is concluded when a record of
decision (ROD) is issued.\12\
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\12\ 40 CFR 1505.2.
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CEQ has been working with agencies to modernize and reinvigorate
NEPA implementation in several ways. CEQ issued guidance on the
development and use of Categorical Exclusions in November 2010.\13\
Properly developed and applied, Categorical Exclusions provide an
efficient tool to complete the NEPA environmental review process for
proposals that normally do not require a more resource-intensive EA or
EIS. The use of Categorical Exclusions can reduce paperwork and delay
for proposed actions that do not raise the potential for significant
environmental effects.\14\ In January 2011, CEQ provided guidance that
specifically addressed the appropriate use of a FONSI to conclude the
NEPA review process relying on an EA. A mitigated FONSI is appropriate
when mitigation is used to avoid or lessen potentially significant
environmental effects of proposed actions that would otherwise need to
be analyzed in an EIS.\15\ In addition, in May 2010, CEQ issued
guidance on ensuring efficient and expeditious compliance with NEPA
when agencies must take exigent action to protect human health or
safety and valued resources in a timeframe that does not allow
sufficient time for the normal NEPA process.\16\
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\13\ CEQ Memorandum, ``Establishing, Applying, and Revising
Categorical Exclusions under the National Environmental Policy
Act,'' November 23, 2010, available at ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
\14\ 40 CFR 1500.4(p) (recommending use of categorical
exclusions as a tool to reduce paperwork), 1500.5(k) (recommending
categorical exclusions as a tool to reduce delay).
\15\ CEQ Memorandum, ``Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of Mitigated Findings
of No Significant Impact,'' January 14, 2011, available at
ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\16\ CEQ Memorandum, ``Emergencies and the National
Environmental Policy Act,'' May 12, 2010, available at
ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
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In August 2011 the President called for further steps to enhance
the efficient and effective permitting and environmental review of
infrastructure development ``through such strategies as integrating
planning and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear
schedules for completing steps in the environmental review and
permitting process; and utilizing information technologies to inform
the public about the progress of environmental reviews as well as the
progress of Federal permitting and review processes.''\17\ This
guidance sets forth straightforward ways by which the CEQ Regulations,
properly understood and applied, support these strategies.
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\17\ Presidential Memorandum, ``Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review'' August 31, 2011, available at https://www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more.
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1. Concise NEPA Documents: Agencies are encouraged to concentrate
on environmental analysis in their EAs and EISs, not to produce an
encyclopedia of all applicable information.\18\ Environmental analysis
should focus on significant issues, discussing insignificant issues
only briefly.\19\ Impacts should be discussed in proportion to their
significance, and if the issues are not deemed significant there should
be only enough discussion to show why more study is not warranted.\20\
Scoping,\21\ incorporation by reference,\22\ and integration of other
[[Page 77495]]
environmental analyses \23\ are additional methods that may be used to
avoid redundant or repetitive discussion of issues.\24\
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\18\ 40 CFR 1500.4(b), 1502.2(b).
\19\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a)
(``Environmental impact statements shall be analytic rather than
encyclopedic.'').
\20\ 40 CFR 1502.2(b).
\21\ 40 CFR 1500.4(g).
\22\ 40 CFR 1500.4(j).
\23\ 40 CFR 1500.4(k).
\24\ See generally 40 CFR 1502.2 (EISs should be written in
plain language so that decisionmakers and the public can understand
them).
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All NEPA environmental documents, not just EISs, should be written
in plain language,\25\ follow a clear format, and emphasize important
portions of the impact analysis over mere background material. Clarity
and consistency ensure that the substance of the agency's analysis is
understood clearly, avoiding unnecessary confusion or risk of
litigation that could result from an ambiguous or opaque analysis. The
CEQ Regulations indicate that the text of a final EIS that addresses
the purpose and need, alternatives, affected environment, and
environmental consequences should normally be less than 150 pages and a
final EIS for proposals of unusual scope or complexity should normally
be less than 300 pages.\26\
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\25\ 40 CFR 1502.8.
\26\ 40 CFR 1502.7.
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In light of the growth of environmental requirements since the
publication of the CEQ Regulations, and the desire to use the EIS to
address, via integration, those requirements, it is recognized that
there will be a range of appropriate lengths of EISs. Nevertheless,
agencies should keep EISs as concise as possible (continuing to
relegate relevant studies and technical analyses to appendices) and no
longer than necessary to comply with NEPA and the other legal and
regulatory requirements being addressed in the EIS, and to provide
decision makers and the public with the information they need to assess
the significant environmental effects of the action under review.
Length should vary with the number, complexity and significance of
potential environmental problems.\27\
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\27\ 40 CFR 1502.2(c) (length should vary first with potential
environmental problems and then with project size).
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Similarly, the CEQ guidance issued in 1981 indicated that 10-15
pages is generally appropriate for EAs.\28\ This guidance must be
balanced with the requirement to take a hard look at the impacts of the
proposed action. As with EISs, an EA's length should vary with the
scope and scale of potential environmental problems, rather than just
with the scope and scale of the proposed action.\29\ The EA should be
no more elaborate than necessary to fulfill the functions and goals set
out in the CEQ Regulations: (1) Briefly provide sufficient evidence and
analysis for determining whether to prepare an EIS; (2) aid an agency's
compliance with NEPA when no EIS is necessary, i.e., the EA helps to
identify and analyze better alternatives and mitigation measures; and
(3) facilitate preparation of an EIS when one is necessary.\30\
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\28\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations''
(Question and Answer 36a), March 16, 1981, available at https://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36. Note that at the time of
this memorandum CEQ was of the opinion that mitigated Findings of No
Significant Impact were only appropriate if the mitigation measures
were imposed by statute or regulation, or submitted by an applicant
or agency as part of the original proposal (Question & Answer 40).
CEQ has since published guidance accepting mitigated FONSIs as
another means of efficiently concluding the NEPA process without
producing an EIS (``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact,'' November 23, 2010, available at https://
ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\29\ 40 CFR 1508.9 (The EA is ``a concise public document''); 40
CFR 1502.2(c) (interpreting the conciseness requirement for an EIS
to mean that ``length should vary first with potential environmental
problems and then with project size'').
\30\ 40 CFR 1508.9(a).
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2. Early NEPA Integration in Planning: An agency should first
consider integrating the NEPA process into planning when it structures
its internal process for developing a proposed policy, program,
management plan, or project. Agencies must integrate the NEPA process
into their planning at the earliest possible time to ensure that
planning and decisions reflect environmental values, avoid delays later
in the process, and anticipate and attempt to resolve potential
issues.\31\ NEPA should not become an after-the-fact process that
justifies decisions that have entirely, or in large part, already been
made.\32\
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\31\ 40 CFR 1501.2.
\32\ 40 CFR 1502.2(g).
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The CEQ Regulations emphasize early NEPA planning in the context of
an EIS. The scoping process can be used before a notice of intent to
seek useful information on a proposal from agencies and the public.\33\
For example, agencies can commence the process to prepare an EIS during
the early stages of development of a proposal, to ensure that the
environmental analysis can be completed in time for the agency to
consider the final EIS before making a decision on the proposal.\34\
Further, an agency shall prepare an EIS so that it can inform the
decisionmaking process in a timely manner ``and will not be used to
rationalize or justify decisions already made.''\35\
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\33\ CEQ Memorandum to Agencies, ``Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations''
(Question and Answer 13), March 16, 1981 available at
ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13.
\34\ 40 CFR 1508.23 (A proposal exists as soon as an agency has
a goal, is developing one or more alternatives to achieve that goal,
and the effects can be meaningfully evaluated).
\35\ 40 CFR 1502.5. For guidelines specific to different agency
activities, see 40 CFR 1502.5(a)--(d). Misuse of the NEPA process to
justify decisions already made is counterproductive and can result
in litigation that could delay and ultimately prevent a proposed
action from proceeding.
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If agencies are to prepare efficient EAs, then they should adhere
to these same principles and ensure that the EA is prepared in
conjunction with the development of the proposed action, and in time to
inform the public and the decisionmaker. Agencies should review their
NEPA implementing procedures as well as their NEPA practices to ensure
that NEPA is integrated into overall project management to the fullest
extent possible whether the agencies are preparing an EA or an EIS.
The CEQ Regulations call upon agencies to provide for situations
where the initial planning process is in the hands of an applicant or
other non-Federal entity.\36\ The Regulations require Federal agencies
to address these situations in their NEPA implementing procedures.\37\
Consequently, agencies that have a reasonably foreseeable role in
actions that are initially developed by private applicants or other
non-Federal entities must plan for those situations. The NEPA
implementing procedures for such agencies must provide access to
designated staff or the policies that can inform applicants and other
non-Federal
[[Page 77496]]
entities of studies or other information foreseeably required for later
Federal action.\38\
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\36\ 40 CFR 1501.2(d) (non-Federal entities plan activities
prior to Federal involvement that trigger NEPA requirements).
\37\ 40 CFR 1507.3(b)(1). All agencies are required to adopt
procedures that supplement the CEQ Regulations and provide NEPA
implementing guidance that both provides agency personnel with
additional, more specific direction for implementing the procedural
provisions of NEPA and informs the public and State and local
officials of how the CEQ Regulations will be implemented in agency
decisionmaking. Agency procedures should therefore provide Federal
personnel with the direction they need to implement NEPA on a day-
to-day basis. The procedures must also provide a clear and
uncomplicated picture of what those outside the Federal government
may do to become involved in the environmental review process under
NEPA. See CEQ Memorandum, ``Agency Implementing Procedures Under
CEQ's NEPA Regulations,'' January 19, 1979 available at
ceq.hss.doe.gov/nepa/regs/exec11979.html. Some examples of agency
NEPA implementing procedures are the Department of the Interior
Department Manual, National Park Service, ``Managing the NEPA
Process,'' May 27, 2004, available at https://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior
Department Manual, Bureau of Land Management, ``Managing the NEPA
Process,'' May 8, 2008, available at https://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
\38\ 40 CFR 1501.2(d)(1).
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Advanced planning for initially non-Federal actions must also
ensure that the Federal agency is able to initiate early consultation
with appropriate Tribes, States, local agencies, and interested private
persons and organizations when Federal involvement is reasonably
foreseeable.\39\ For actions initiated at the request of a non-Federal
entity, Federal agencies should begin the NEPA process for preparing
their EA or EIS as early as possible but no later than upon receipt of
a complete application.\40\ Federal agencies should, whenever possible,
guide applicants to gather and develop the appropriate level of
information and analyses in advance of submitting an application or
other request for federal agency action. For example, several agencies
require an applicant to prepare and submit an environmental report to
help prepare the NEPA analyses and documentation and facilitate the
lead agency's independent environmental review of the proposal.
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\39\ 40 CFR 1501.2(d)(2). Agencies should be cognizant of their
obligations under current Executive Orders 13175 (Consultation and
Coordination with Indian Tribal Governments, Nov 6, 2000) and 112898
(Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, Feb 11, 1994), available at
ceq.hss.doe.gov/laws_and_executive_orders/executive_orders.html.
\40\ 40 CFR 1501.2(d)(3).
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3. Scoping: To effectuate integration, avoid duplication, and focus
the NEPA review, the CEQ Regulations provide for ``scoping.'' \41\ In
scoping, the lead agency determines the issues that its EA or EIS will
address and identifies the significant issues related to the proposed
action that will be considered in the analysis.\42\ To increase
efficiency, the lead agency can solicit cooperation at the earliest
possible time from other agencies that have jurisdiction by law or
special expertise on any environmental issue that should be considered.
Cooperating agencies with jurisdiction by law or special expertise can
work with the lead agency to ensure that, whenever possible, one NEPA
review process informs all the decisions needed to determine whether
and, if so, how a proposed action will proceed.\43\
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\41\ 40 CFR 1501.7 (``There shall be an early and open process
for determining the scope of issues to be addressed and for
identifying the significant issues related to a proposed action.
This process shall be termed scoping.'')
\42\ 40 CFR 1500.4(b), (g) and 1501.7.
\43\ 40 CFR 1501.6, 1508.5 (responsibilities of the lead agency
include the requirement to request the participation of any other
Federal agency which has jurisdiction by law). Previous guidance on
engaging other agencies with jurisdiction over permits and other
approvals required for a proposal to proceed include: CEQ Memorandum
for Heads of Federal Agencies, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act'' (January 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; and CEQ Memorandum to Agencies,
``Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations'' (Question and Answer 14), March 16, 1981
available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14.
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The CEQ Regulations explicitly address the role of scoping in
preparation of an EIS. Agencies can also choose to take advantage of
scoping when preparing an EA that deals with uncertainty or controversy
regarding potential conflicts over the use of resources or the
environmental effects of the proposed action. For example, a lead
agency preparing such an EA may use scoping to identify and eliminate
from detailed study the issues that are not significant or that have
been covered by prior environmental review.\44\ The scoping process
provides a transparent way to identify significant environmental issues
and to deemphasize insignificant issues,\45\ thereby focusing the
analysis on the most pertinent issues and impacts.\46\
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\44\ 40 CFR 1501.7(a)(3).
\45\ 40 CFR 1500.4(g).
\46\ 40 CFR 1501.4(b) (agencies are to involve the public in the
preparation of EAs; the manner in which they do so is left to the
agency).
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The scoping process can be particularly helpful in identifying
opportunities to coordinate reviews and related surveys and studies
required by other laws or by executive orders. Scoping should also be
used to begin inter- and intra-governmental coordination if it is not
already ongoing. To accomplish these goals, the lead agency preparing
an EA or an EIS can choose to invite the participation of affected
Federal, State, and local agencies, any affected Indian tribe, the
proponent of the action, and ``other interested persons (including
those who might not be in accord with the action on environmental
grounds).'' \47\ In addition to facilitating coordination and the
development of required environmental reviews, scoping will help to
identify the universe of matters that need to be addressed with
particular care and flag issues for thorough consideration, thereby
defusing potential conflict that, absent early attention, could arise
later and potentially delay the timely completion of the relevant NEPA
review.\48\
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\47\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing
cooperating agency status is discussed in greater detail in the CEQ
Memorandum for Heads of Federal Agencies, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act,'' 30 January 2002 available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\48\ In cases where a Federal agency uses scoping for an EA and
subsequently determines it is necessary to conduct an EIS, the
agency should refer to the guidance provided in the CEQ Memorandum
to Agencies, ``Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations'' (Question and Answer 13),
March 16, 1981, available at https://ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (scoping that is done before the assessment, and in aid of
its preparation, cannot substitute for the normal scoping process
after publication of the NOI, unless the earlier public notice
stated clearly that this possibility was under consideration, and
the NOI expressly provides that written comments on the scope of
alternatives and impacts will still be considered).
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In sum, the scoping process provides an early opportunity to plan
collaboration with other governments,\49\ assign responsibilities,\50\
and develop the planning and decisionmaking schedule.\51\ It also
affords lead agencies the option of setting page limits for
environmental documents and setting time limits for the steps in the
NEPA process.\52\ Agencies may also choose to use scoping whenever any
of these techniques can provide for the more effective and efficient
preparation of an EA.
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\49\ 40 CFR 1501.6 and 1508.5. CEQ has published guidance
encouraging lead agencies to establish a formal cooperating agency
relationship with other Federal agencies as well as State, Tribal,
and local governmental entities. CEQ memorandum, ``Cooperating
Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act,'' January 30, 2002, available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\50\ 40 CFR 1501.7(a)(4) (a lead agency may allocate
responsibility for EIS preparation and analysis among cooperating
agencies during scoping).
\51\ 40 CFR 1501.7(a)(7).
\52\ 40 CFR 1501.7(b)(1)-(2), 1501.8.
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4. Inter-Governmental Coordination (State, Local, or Tribal
Environmental Reviews): CEQ encourages Federal agencies to collaborate
with Tribal, State, and local governments to the fullest extent
possible to reduce duplication, unless the agencies are specifically
barred from doing so by some other law.\53\ The CEQ Regulations
explicitly provide for agencies to conduct joint planning processes,
joint environmental research and studies, joint public hearings (except
where otherwise provided by statute), and joint environmental
assessments.\54\ Federal agencies should explore every reasonable
opportunity to integrate the requirements of NEPA with the external
planning and environmental reviews required on the Federal as well as
the State, Tribal, and local levels of
[[Page 77497]]
government so that those reviews can run concurrently rather than
consecutively.\55\
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\53\ 40 CFR 1506.2(b).
\54\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging
Federal agencies to eliminate duplication with State and local
procedures, by providing for joint preparation).
\55\ 40 CFR 1500.2(c). This point is reiterated throughout the
CEQ Regulations.
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Where State law or local ordinances contain environmental impact
analysis and documentation requirements in addition to, but not in
conflict with, those in NEPA, the CEQ Regulations provide authority for
producing joint EISs.\56\ In such cases, Federal agencies shall
cooperate in fulfilling the State, Tribal, and local environmental
impact analysis and documentation requirements as well as the
requirements of other environmental laws so that one document will
suffice for complying with as many applicable laws as practicable.
Federal agencies should seek efficiencies and avoid delay by attempting
to meet applicable non-Federal NEPA-like requirements in conjunction
with either an EA or an EIS wherever possible.
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\56\ 40 CFR 1506.2(c).
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The CEQ Regulations also require that a Federal agency preparing an
EIS better integrate the EIS into non-Federal planning processes by
discussing and explaining any inconsistency of a proposed Federal
action with any approved State or local plan and laws.\57\ When
preparing an EA or EIS, if an inconsistency with any approved Tribal,
State, or local plan or laws exists, the Federal agency should describe
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\58\
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\57\ 40 CFR 1506.2(d).
\58\ 40 CFR 1506.2(d).
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5. Coordinating Reviews and Documents Under Other Applicable Laws:
Agencies must integrate, to the fullest extent possible, their draft
EIS with environmental impact analyses and related surveys and studies
required by other laws or by executive order.\59\ Coordinated and
concurrent environmental reviews are appropriate whenever other
analyses, surveys, and studies will consider the same issues and
information as a NEPA analysis. Such coordination should be considered
when preparing an EA as well as when preparing an EIS.
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\59\ 40 CFR 1502.25(a). Examples provided in the Regulation are:
the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the
National Historic Preservation Act (16 U.S.C. 470 et seq.); and the
Endangered Species Act (16 U.S.C. 1531 et seq.).
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The goal should be to conduct concurrent rather than sequential
processes whenever appropriate. In situations where one aspect of a
project is within the particular expertise or jurisdiction of another
agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more
efficient.
A coordinated or concurrent process may provide a better basis for
informed decision making, or at least achieve the same result as
separate or consecutive processes while avoiding unnecessary
duplication of effort. In addition to integrating the reviews and
analyses, the CEQ Regulations also state that any environmental
document that complies with NEPA may be combined with any other agency
document to reduce duplication and paperwork.\60\
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\60\ 40 CFR 1506.4; see also 40 CFR 1500.4(k), (n).
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6. Adoption: The adoption of one Federal agency's EIS, or a portion
of that EIS, by another Federal agency is an efficiency that the CEQ
Regulations provide.\61\ An agency preparing an EA should similarly
consider adopting another agency's EA when the EA or a portion thereof
addresses the proposed action and meets the standards for an adequate
EA under NEPA, the CEQ's Regulations, and the adopting agency's NEPA
implementing procedures.
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\61\ 40 CFR 1506.3.
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The CEQ Regulations require agencies to involve agencies,
applicants and the public; however, they do not require agencies to
prepare a draft EA and circulate a draft or final EA for public review
or comment.\62\ If an agency's implementing NEPA procedures establish
requirements for public review and comment when preparing an EA,
however, then the adopting agency must provide a similar process when
it adopts the preparing agency's EA.
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\62\ 40 CFR 1501.4(b) and 1506.6 (Agencies are to involve the
public in the preparation of EAs, the manner in which they do so is
left to the agency).
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In those cases where the adopting agency is also a cooperating
agency in the preparation of an EIS, it may adopt the lead agency's EIS
without additional public involvement when, after an independent
review, it concludes that the lead agency has adequately addressed the
adopting agency's comments and suggestions.\63\ Similarly, when the
adopting agency was a cooperating agency in the preparation of an EA,
it may adopt the EA without additional public involvement.
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\63\ 40 CFR 1506.3(c).
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7. Incorporation by Reference: Incorporation by reference is
another method that provides efficiency and timesaving when preparing
either an EA or an EIS. The CEQ Regulations direct agencies to
incorporate material into an EIS by reference to reduce the size of the
EIS and avoid duplicative effort.\64\ An agency must cite the
incorporated material in an EIS and briefly describe the content.\65\
An agency may not incorporate any material by reference in an EIS
unless the material is reasonably available for inspection by
potentially interested persons within the time allowed for comment.\66\
Agencies can, consistent with NEPA and the CEQ Regulations, incorporate
documents into an EA by reference provided the content has been briefly
described and the materials are reasonably available for review by
interested parties.
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\64\ 40 CFR 1502.21.
\65\ 40 CFR 1502.21.
\66\ 40 CFR 1502.21 (material based on proprietary data which is
itself not available for review and comment cannot be incorporated
by reference).
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8. Expediting Responses to Comments: Agencies should provide a
reasonable and proportionate response to comments on a draft EIS by
focusing on the environmental issues and information conveyed by the
comments. When preparing a final EIS, if the draft EIS complies with
NEPA, CEQ regulations, and agency implementing procedures, the agency
may use the draft EIS as the final EIS under certain conditions. If
changes in response to comments are minor and are limited to factual
corrections and/or explanations of why the comments do not warrant
further agency response, agencies may write them on errata sheets and
attach them to the statement instead of rewriting the draft
statement.\67\ In such cases, the agency must circulate only the
comments, the responses and the changes, and not the final
statement.\68\ Only the comments, responses, and changes need be filed
with the draft document and a new cover sheet to make the EIS final,
under those circumstances.\69\ Similarly, if an agency issues an EA for
comment and the changes in response to comments are minor and limited
to factual corrections and/or explanations of why the comments do not
warrant further agency response, then the agency may prepare a similar
cover and errata sheet and use its draft EA as the final EA.
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\67\ 40 CFR 1503.4(c); see also 40 CFR 1500.4(m).
\68\ 40 CFR 1503.4(c).
\69\ 40 CFR 1503.4(c).
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9. Clear Time Lines for NEPA Reviews: Establishing appropriate time
limits promotes the efficiency of the NEPA process.\70\ The CEQ
Regulations do not prescribe universal time limits for the entire NEPA
process; instead they set certain minimum time limits for the various
portions of the NEPA process.\71\ The CEQ Regulations do
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encourage Federal agencies to set appropriate time limits for
individual actions, however, and provide a list of factors to consider
in establishing timelines.\72\ Those factors include: the potential for
environmental harm; the size of the proposed action; other time limits
imposed on the action by other laws, regulations, or executive orders;
and the degree of public need for the proposed action and the
consequences of delay. The CEQ Regulations refer to the EIS process
when describing the ``constituent parts of the NEPA process'' to which
time limits may apply, require agencies to set time limits at the
request of an applicant, and allow agencies to set time limits at the
request of other interested parties.\73\ It is entirely consistent with
the purposes and goals of NEPA and with the CEQ Regulations for
agencies to also determine appropriate time limits for the EA process
when requested by applicants, Tribes, States, local agencies, or
members of the public.
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\70\ 40 CFR 1500.5(e).
\71\ 40 CFR 1506.10 (setting 90 day time period between EPA
publication of the notice of availability of a draft EIS and the
Record of Decision, 30 day time period between EPA publication of
the notice of availability of a final EIS and the Record of
Decision, and 45 days for comment on a draft EIS).
\72\ 40 CFR 1501.8 (CEQ encourages Federal agencies to set time
limits consistent with the time intervals required by Sec.
1506.10).
\73\ 40 CFR 1501.8(a) and (c).
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Conclusion: This guidance describes methods provided in the CEQ
regulations that agencies preparing an EA or an EIS may employ to
prepare concise and timely NEPA reviews. Using methods such as
integrating planning and environmental reviews and permitting,
coordinating multi-agency or multi-governmental reviews and approvals,
and setting schedules for completing the environmental review will
assist agencies in preparing efficient and timely EAs and EISs
consistent with legal precedent and agency NEPA experience and
practice.
Nancy H. Sutley,
Chair.
[FR Doc. 2011-31983 Filed 12-12-11; 8:45 am]
BILLING CODE 3225-F2-P
