Effective Use of Programmatic NEPA Reviews, 50578-50589 [2014-20199]
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Federal Register / Vol. 79, No. 164 / Monday, August 25, 2014 / Proposed Rules
Ambient Air Quality Standard.’’ One
petition was submitted by the Treasure
State Resource Industry Association and
Yellowstone County, and the other
petition was submitted by the Montana
Sulphur and Chemical Company (the
Petitioners). The EPA carefully
considered these petitions and
supporting information, along with
information contained in the
rulemaking docket, in reaching
decisions on these petitions. The EPA
denied the petitions for reconsideration
in separate letters to the Petitioners
dated August 14, 2014. The letters
explain the EPA’s reasons for the
denials. One of the Petitioners also
requested that the EPA stay the
Petitioner
effectiveness of the designations rule,
pending reconsideration. Because the
EPA denied the reconsideration
requests, the EPA also denied the stay
request.
The petitions for reconsideration
and stay request were denied August 14,
2014.
DATES:
FOR FURTHER INFORMATION CONTACT:
Rhonda Wright, Air Quality Policy
Division, Office of Air Quality Planning
and Standards, U.S. Environmental
Protection Agency, Mail code C539–04,
Research Triangle Park, NC 27711;
telephone: (919) 541–1087; email:
wright.rhonda@epa.gov.
SUPPLEMENTARY INFORMATION:
Dates of petitions to the EPA
Petition:
document No.
in docket
I. Where can I get copies of this
document and other related
information?
This Federal Register notice, the
petitions for reconsideration and the
response letters to the Petitioners are
available in the EPA’s docket
established for the rulemaking to
promulgate the air quality designations
for the 2010 SO2 NAAQS, under Docket
ID No. EPA–HQ–OAR–2012–0233. The
table below identifies the Petitioners,
the date the EPA received the petitions,
the document identification number of
the petitions, the date of the EPA’s
responses and the document
identification numbers for the EPA’s
responses.
Date of the EPA
response
The EPA response:
document No. in
docket
Billings, MO Nonattainment Area
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Montana Sulphur & Chemical Company ...
Treasure State Resource Industry Association and Yellowstone County.
October 4, 2013 ..........................
November 26, 2013 ....................
All documents in the docket are listed
in the index at https://
www.regulations.gov. Although listed in
the index, some information is not
publicly available, e.g., confidential
business information or other
information where disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
EPA’s Docket Center, Public Reading
Room, U.S. Environmental Protection
Agency, William Jefferson Clinton West
Building, 1301 Constitution Avenue,
Northwest, Room 3334, Washington, DC
20004. This Docket Center is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the Air Docket
is (202) 566–1742.
In addition, the EPA has established
a Web site for the SO2 designations
rulemaking at https://www.epa.gov/
so2designations. This Federal Register
notice, the petitions for reconsideration
and the response letters to the
Petitioners are also available on this
Web site along with other information
relevant to the designations process.
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–0360
II. Judicial Review
Section 307(b)(1) of the Clean Air Act
indicates which Federal Courts of
Appeal have venue for petitions for
review of final actions by the EPA. This
section provides, in part, that petitions
for review must be filed in the Court of
Appeals for the District of Columbia
Circuit (i) when the agency action
consists of ‘‘nationally applicable
regulations promulgated, or final actions
taken, by the Administrator,’’ or (ii)
when such action is locally or regionally
applicable, if ‘‘such action is based on
a determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’ In the rule establishing
air quality designations for the 2010 SO2
NAAQS, the EPA determined that the
actions are of nationwide scope and
effect for the purposes of section
307(b)(1). [See 78 FR 47191, 47197
(August 5, 2013)].
The EPA has determined that its
actions denying these petitions for
reconsideration also are of nationwide
scope and effect because they directly
relate to the SO2 designations
rulemaking that the EPA previously
determined is of nationwide scope and
effect. Thus, any petition for review of
the final letters denying the petitions for
reconsideration must be filed in the
Court of Appeals for the District of
Columbia Circuit on or before October
24, 2014.
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August 14, 2014 ............
August 14, 2014 ............
[INSERT No.]
[INSERT No.]
Dated: August 15, 2014.
Janet McCabe,
Acting Assistant Administrator, Office of Air
Radiation.
[FR Doc. 2014–20216 Filed 8–22–14; 8:45 am]
BILLING CODE 6560–50–P
COUNCIL ON ENVIRONMENTAL
QUALITY
40 CFR Parts 1500, 1501, 1502, 1503,
1505, 1506, 1507, and 1508
Effective Use of Programmatic NEPA
Reviews
Council on Environmental
Quality.
ACTION: Notice of Availability, Request
for Public Comments on Draft Guidance
on Effective Use of Programmatic
National Environmental Policy Act
Reviews.
AGENCY:
The Council on
Environmental Quality (CEQ) is
publishing draft guidance on when and
how Federal agencies can effectively use
National Environmental Policy Act
(NEPA) programmatic reviews.
Guidance on programmatic NEPA
reviews has been requested by the
agencies and attention on programmatic
NEPA reviews has increased as agencies
are increasingly undertaking broad
landscape scale analyses for proposals
that affect the resources they manage.
This guidance is designed to assist
agency decision-makers and the public
SUMMARY:
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in understanding the environmental
impacts from proposed large-scope
Federal actions and activities and to
facilitate agency compliance with NEPA
by clarifying the different planning
scenarios under which an agency may
prepare a programmatic, broad-scale,
review. The guidance also addresses
how agencies can prepare such reviews
to ensure they are timely, informative,
and useful for advancing decisionmaking.
The goal of this guidance is to
encourage a more consistent approach
to programmatic NEPA reviews so that
the analyses and documentation will
allow for the expeditious and efficient
completion of any necessary tiered
reviews. It builds on guidance issued
since 1981 that explained the use of
tiering and its place in the NEPA
process.
DATES: Submit comments on or before
October 9, 2014.
ADDRESSES: The NEPA Draft Guidance
Documents are available at https://
www.whitehouse.gov/administration/
eop/ceq/initiatives/and https://
www.nepa.gov. Submit electronic
comments on the NEPA Draft Guidance
‘‘Effective Use of Programmatic NEPA
Reviews’’ to https://
www.whitehouse.gov/webform/submitcomments-draft-guidanceprogrammatic-nepa-reviews, or in
writing to The Council on
Environmental Quality, Attn: Horst
Greczmiel, 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: This draft
guidance will apply to Federal agencies
in accordance with sections 1507.2 and
1507.3 of the CEQ Regulations
Implementing the Procedural Provisions
of the National Environmental Policy
Act, 40 CFR Parts 1500–1508. The
National Environmental Policy Act
(NEPA), 42 U.S.C. 4321–4370, enacted
in 1970, 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
decisions before acting. Additionally,
NEPA emphasizes public involvement
in government actions affecting the
environment by requiring that the
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benefits and risks associated with
proposed actions be assessed and
publicly disclosed.
CEQ, which is charged with
overseeing NEPA, recognizes that NEPA
is a visionary and versatile law that can
be used effectively to address new
environmental challenges facing our
nation and also to engage the public
widely and effectively. Programmatic
NEPA reviews are one method of NEPA
implementation that merits increased
attention and use to facilitate agency
compliance with NEPA, and enhance
the quality of public involvement in
governmental decisions relating to the
environment. For example,
programmatic NEPA environmental
reviews provide another mechanism for
agencies to address efforts on improving
environmental reviews for various
sectors and types of Federal activities
such as infrastructure 1 and disaster
recovery.2 In March 2012, CEQ
published guidance focused on
improving the efficiency and timeliness
of NEPA environmental reviews 3 and
this guidance provides NEPA
practitioners with another tool to
improve the effectiveness and efficiency
of NEPA reviews.
CEQ interprets its regulations as
allowing for the use of a programmatic
review in an Environmental Assessment
(EA) as well as in an Environmental
Impact Statement (EIS). A programmatic
NEPA review may be appropriate when
the action being considered falls into
any one of the categories of Federal
actions subject to NEPA, including: (1)
Adopting official policy; (2) adopting
formal plans; (3) adopting agency
programs; and (4) approving multiple
actions.
CEQ is seeking public comment on
this guidance for 45 days. The draft
guidance and Appendix A which
provides a table of key distinctions
between programmatic and the
subsequent tiered NEPA reviews are
available for review and comment here
and at the CEQ Web site at https://
www.whitehouse.gov/administration/
eop/ceq/initiatives/. Appendices B (CEQ
regulations and guidance relevant to
programmatic reviews) and C (examples
of successful programmatic NEPA
1 See Federal Infrastructure Projects, Permitting
Dashboard, available at https://
www.permits.performance.gov/.
2 See Unified Federal Review, available at https://
achp.gov/unified_federal_review.html.
3 Council on Environmental Quality,
Memorandum for Heads of Federal Departments
and Agencies: Improving the Process for Preparing
Efficient and Timely Environmental Reviews under
the National Environmental Policy Act (March 6,
2012), available at https://ceq.hss.doe.gov/current_
developments/docs/Improving_NEPA_Efficiencies_
06Mar2012.pdf.
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reviews) are also available for review on
that Web site. CEQ welcomes your
comments and any suggestions on all
the Appendices.
Public comments are requested on or
before October 9, 2014. CEQ intends to
make all comments received available
online without change, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Please do not include any personal
information or any information that you
consider to be Confidential Business
Information or otherwise protected as
part of a public comment.
Dated: August 14, 2014.
Michael J. Boots,
Acting Chair, Council on Environmental
Quality.
Effective Use of Programmatic NEPA
Reviews
I. Introduction
A. Purpose of This Guidance
B. The Nature of Programmatic NEPA
Reviews
II. Programmatic NEPA Reviews in the
Council on Environmental Quality
Regulations
III. When to Use a Programmatic and Tiered
NEPA Review
IV. Practical Considerations for Programmatic
Reviews and Documents
A. Determining the Scope of the
Programmatic NEPA Review
1. Purpose and Need
2. Scope of Analysis
3. The Proposed Action
4. The Alternatives
5. The Impacts
B. Collaboration, Public Engagement, and
Coordination With Other Environmental
Reviews
1. The Importance of Collaboration and
Cooperation
2. Public Involvement
3. Coordination With Other Environmental
Reviews
C. Preparing the Documents
1. Programmatic Environmental
Assessment or Programmatic
Environmental Impact Statement?
2. Level of Detail in Programmatic NEPA
Documents
3. Depth of Impact Analysis in
Programmatic NEPA Documents
D. Mitigation and Monitoring
E. Handling New Proposals While
Preparing a Programmatic NEPA Review
F. The Decision Document
V. Subsequent Proposal-Specific NEPA
Reviews
A. Deferred Issues
B. Tiering NEPA Reviews
C. New Information and Supplementing
Documents
VI. The Lifespan of a Programmatic NEPA
Document
VII. Conclusions
Appendices
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A. Table of Key Distinctions Between
Programmatic and Tiered Analyses
B. CEQ Regulations and Guidance
C. Sample Programmatic Analyses
I. Introduction
A programmatic National
Environmental Policy Act (NEPA)
review should assist agency decisionmakers and the public in understanding
the environmental impacts from
proposed large scope Federal actions
and activities. The analyses in a
programmatic review are valuable in
setting out the broad view of
environmental harms and benefits,
which can then be relied upon when
agencies make decisions based on the
Programmatic Environmental
Assessment (PEA) or Programmatic
Environmental Impact Statement
(PEIS),4 as well as decisions based on a
subsequent (tiered) 5 NEPA review.
Programmatic NEPA reviews should
result in clearer and more transparent
decision-making, as well as provide a
better defined and more expeditious
path toward decisions on proposed
actions. Agencies are encouraged to
revise or amend their NEPA
implementing procedures, if necessary,
to allow for analyses at a programmatic
level.
A. Purpose of This Guidance
This guidance was prepared to assist
Federal agencies to improve and
modernize their use of programmatic
NEPA reviews (analysis and
documentation). The term
‘‘programmatic’’ describes any broad or
high-level NEPA review; it is not
limited to a NEPA review for a
particular program.6 Programmatic
NEPA reviews assess the environmental
impacts of proposed policies, plans,
programs, or projects for which
subsequent actions will be implemented
either based on the PEA or PEIS, or
based on subsequent NEPA reviews
tiered to the programmatic review (e.g.,
a site- or project- specific document).
Programmatic NEPA reviews designed
to meet NEPA responsibilities for
proposed actions without a tiered
review are governed by the same
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4 The
terms PEA and PEIS are also know by some
Federal agencies as generic or tier 1 NEPA review.
5 ‘‘Tiering’’ refers to an approach where federal
agencies first consider the broad, general impacts of
proposed program, plan, policy, or large scope
project—or at the early stage of a phased proposal—
and then conduct subsequent, narrower, decision
focused reviews. See 40 CFR 1502.20 and 1508.28.
6 For example, programmatic NEPA reviews are
used when agencies revise forest or land and
resource management plans, establish programs to
eradicate or control invasive species, develop
infrastructure with a multijurisdictional footprint,
or develop multiple similar recovery projects
following a major disaster.
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regulations and guidance that apply to
non-programmatic NEPA reviews. They
should be developed and their adequacy
judged as a stand-alone final NEPA
review. This guidance addresses both
programmatic NEPA reviews that make
decisions applicable to subsequent
tiered NEPA reviews and programmatic
NEPA reviews without any subsequent
review.
The programmatic approach under
NEPA has not been fully used for its
intended purpose and when used, it
often has not fulfilled agency or
stakeholder expectations.7 On March 6,
2012, the Council on Environmental
Quality (CEQ) published guidance
highlighting the efficiencies provided
for in the CEQ Regulations
Implementing the Procedural
Requirements of the National
Environmental Policy Act (CEQ
Regulations) 8 and received feedback
from several stakeholders that
additional guidance on programmatic
and tiered NEPA reviews would provide
a valuable addition to agency practices
and procedures for providing more
timely and efficient NEPA reviews.9
7 Council on Environmental Quality, National
Environmental Policy Act Task Force Report:
Modernizing NEPA Implementation (Sept. 24, 2003)
(finding that reliance on programmatic NEPA
documents has resulted in public and regulatory
agency concern that programmatic NEPA
documents often result in a ‘‘shell game’’ of when
and where deferred issues will be addressed,
undermining agency credibility and public trust.
The report found that the public may fail to
understand: (1) The significance of the broad
decisions being analyzed; and (2) that the specific
details will be provided in subsequent site-specific
documents. On the other hand, when programmatic
NEPA documents are focused, some respondents
fear that some issues and analyses will be deferred
and ultimately never addressed. The NEPA Task
Force found that agencies that provide the greatest
specificity in programmatic documents have the
greatest difficulty in maintaining the viability and
durability of these documents. This difficulty
associated with maintaining document relevancy
has led some agencies as well as members of the
public to conclude that preparing programmatic
NEPA documents is not cost effective. The
recommendation of the Task Force was that CEQ
develop advice to agencies on the analytical
requirements associated with the different uses of
programmatic NEPA reviews, to foster agreement
and consistency between agency decisions and
public expectations), available at https://
ceq.hss.doe.gov/ntf/20030929memo.pdf.
8 Council on Environmental Quality,
Memorandum for Heads of Federal Departments
and Agencies: Improving the Process for Preparing
Efficient and Timely Environmental Reviews under
the National Environmental Policy Act (March 6,
2012), available at https://ceq.hss.doe.gov/current_
developments/docs/Improving_NEPA_Efficiencies_
06Mar2012.pdf.
9 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, regulation, or any other
legally binding requirement and is not legally
enforceable. The use of non-mandatory language
such as ‘‘recommend,’’ ‘‘may,’’ ‘‘should,’’ and
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This guidance is designed to provide
practitioners with guidance to assist in
the preparation and proper use of
programmatic NEPA reviews, and help
agencies inform and meet public
expectations for programmatic reviews
that will enhance the focus and utility
of public review and comment. It builds
on guidance issued in 1983 that
explains the use of tiering and its place
in the NEPA process.10
This new guidance focuses
specifically on NEPA reviews and not
on other types of programmatic
analyses. CEQ recognizes that analyses
conducted outside the context of NEPA
can also play an important role, for
example, in assessing existing
conditions. Although these types of
analyses may be used—either by
incorporation by reference or as a
starting point for developing the NEPA
review—an analysis prepared by an
agency is not a NEPA programmatic
review unless that agency is making
decisions on a proposed Federal action.
This important distinction was
explained in previous NEPA guidance
which referred to a non-NEPA
programmatic review as a joint
inventory or planning study:
In geographic settings where several Federal
actions are likely to have effects on the same
environmental resources it may be advisable
for the lead Federal agencies to provide
historical or other baseline information
relating to the resources. This can be done
either through a programmatic NEPA
analysis or can be done separately, such as
through a joint inventory or planning study.
The results can then be incorporated by
reference into NEPA documents prepared for
specific Federal actions so long as the
programmatic analysis or study is reasonably
available to the interested public.11
B. The Nature of Programmatic NEPA
Reviews
A PEA or PEIS addresses the general
environmental issues and concerns at a
broad policy or program level, and can
effectively frame the scope of
subsequent site- and project-specific
proposed Federal actions. A well-crafted
NEPA programmatic review provides
‘‘can,’’ is intended to describe CEQ policies and
recommendations. The use of mandatory
terminology such as ‘‘must’’ and ‘‘required’’ is
intended to describe controlling requirements
under the terms of NEPA and the CEQ Regulations,
but this document does not establish legally
binding requirements in and of itself.
10 Council on Environmental Quality, Guidance
Regarding NEPA Regulations, Memorandum for
Heads of Federal Agencies (July 28, 1983), available
at https://ceq.hss.doe.gov/nepa/regs/1983/
1983guid.htm.
11 Council on Environmental Quality, Guidance
on the Consideration of Past Actions in Cumulative
Effects Analysis (June 24, 2005), available at https://
ceq.hss.doe.gov/nepa/regs/Guidance_on_CE.pdf.
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the basis for broad or high-level
decisions such as identifying
geographically bounded areas within
which future proposed activities can be
taken or identifying broad mitigation
and conservation measures that can be
applied to subsequent tiered reviews.
One advantage of preparing a
programmatic NEPA review for
repetitive agency activities is that the
programmatic NEPA review can
effectively provide a starting point for
the analysis of cumulative and indirect
impacts. Using such an approach allows
an agency to subsequently tier to this
analysis, and address more narrow, sitespecific, details. This avoids repetitive
broad level analyses in subsequent
tiered NEPA reviews and provides a
more comprehensive picture of the
consequences of possible actions. An
agency relying on a programmatic NEPA
review must consider whether the depth
of analysis needed for a tiered action
requires adding to, or building on, the
analysis provided in the programmatic
NEPA document. A programmatic
NEPA review can also be an effective
means to narrow the consideration of
alternatives and impact discussions in a
subsequent tiered NEPA review.
Decision-makers may also call for a
programmatic NEPA review for other
reasons. For example, programmatic
analyses may serve to influence the
nature of subsequent decisions, thereby
providing for an integrated and
sustainable policy, planning framework,
or program. Programmatic NEPA
reviews may also support policy- and
planning-level decisions when there are
limitations in available information and
uncertainty regarding the timing,
location, and environmental impacts of
subsequent implementing action(s). For
example, in the absence of certainty
regarding the environmental
consequences of future tiered actions,
agencies may be able to make broad
program decisions and establish
parameters for subsequent analyses
based on a programmatic review that
adequately examines the reasonably
foreseeable consequences of a proposed
program, policy, plan, or suite of
projects.
II. Programmatic NEPA Reviews in
Council on Environmental Quality
Regulations
The concept of ‘‘programmatic’’ NEPA
reviews is imbedded in the CEQ
Regulations Implementing the
Procedural Requirements of NEPA (CEQ
Regulations) that address analyses of
‘‘broad actions’’ and the tiering
process.12
12 40
CFR parts 1500–1508.
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The CEQ Regulations state in relevant
part that environmental impact
statements may be prepared, and are
sometimes required, for broad Federal
actions such as the adoption of new
agency programs or regulations, and that
agencies shall prepare statements on
broad actions so that they are relevant
to policy and are timed to coincide with
meaningful points in agency planning
and decisionmaking.13 The regulations
also state that when preparing
statements on broad actions (including
proposals by more than one agency),
agencies may find it useful to evaluate
the proposal(s) in one of the following
ways: geographically, including actions
occurring in the same general location,
such as body of water, region, or
metropolitan area; generically,
including actions that have relevant
similarities, such as common timing,
impacts, alternatives, methods of
implementation, media, or subject
matter; or by stage of technological
development, including Federal or
Federally assisted research,
development or demonstration
programs for new technologies which, if
applied, could significantly affect the
quality of the human environment.14
CEQ interprets its regulations as
allowing for the use of a programmatic
approach in developing an EA as well
as in an EIS.
CEQ interprets its regulations as
allowing for the use of a programmatic
approach in developing an EA as well
as in an EIS.
In cases where a policy, plan,
program, or broad project analysis
identifies but does not provide
sufficiently in-depth analysis for
potential future actions, then
subsequent analyses are appropriate and
are referred to as ‘‘tiered’’ analyses.
Tiering is one way ‘‘to relate broad and
narrow actions and to avoid duplication
and delay.’’ 15 Appendix A provides a
table of key distinctions between
programmatic and the subsequent tiered
NEPA reviews, Appendix B provides
the CEQ regulations and guidance
relevant to programmatic reviews, and
Appendix C contains examples of
successful programmatic NEPA
reviews.16
III. When to Use a Programmatic and
Tiered NEPA Review
Programmatic NEPA reviews add
value and efficiency to the decision13 40
CFR 1502.4(b).
CFR 1502.4(c).
15 40 CFR 1502.4(d). Tiering is described at 40
CFR 1502.20 and further defined at 40 CFR 1508.28.
16 Appendices B & C available at https://
www.whitehouse.gov/administration/eop/ceq/
initiatives/.
14 40
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making process when they inform the
scope of decisions and subsequent
tiered NEPA reviews. Programmatic
NEPA reviews can facilitate decisions
on matters that precede site- or projectspecific implementation, such as
mitigation commitments for subsequent
actions, or narrowing of future
alternatives. They also provide
information and analyses that can be
incorporated by reference in future
NEPA reviews. Programmatic NEPA
documents may help an agency look at
a large or multi-faceted action without
becoming immersed in all the details of
future site or project-specific proposals.
Using programmatic and subsequent
tiered NEPA reviews effectively will
allow for a focused review at the proper
level.
A programmatic NEPA review may be
appropriate when the action being
considered falls into one of the four
major categories of actions to which
NEPA can apply:
• Adopting Official Policy. Decision
to adopt in a formal document an
official policy that would result in or
substantially alter agency programs. The
programmatic analysis for such a
decision should include a road map for
future agency actions with defined
objectives, priorities, rules, or
mechanisms to implement objectives.
Programmatic examples include:
Æ Rulemaking at National- or
regional-level;
Æ Adoption of an agency-wide policy;
or
Æ Redesign of an existing program.
• Adopting Formal Plans. Decision to
adopt formal plans, such as documents
that guide or prescribe alternative uses
of Federal resources, upon which future
agency actions will be based. For
example, setting priorities, options, and
measures for future resource allocation
according to resource suitability and
availability. Specific programmatic
examples include:
Æ Strategic planning linked to agency
resource allocation; or
Æ Adoption of an agency plan for a
group of related projects.
• Adopting Agency Programs.
Decision to proceed with a group of
concerted actions to implement a
specific policy or plan; e.g., an
organized agenda with defined
objectives to be achieved during
implementation of specified activities.
Programmatic examples include:
Æ A new agency mission or initiative;
or
Æ Proposals to substantially redesign
existing programs.
• Approving Multiple Actions.
Decision to proceed with multiple
projects that are temporally or spatially
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connected and that will have a series of
associated concurrent or subsequent
decisions. Programmatic examples
include:
Æ Several similar actions or projects
in a region or nationwide (e.g., a large
scale corridor project); or
Æ A suite of ongoing, proposed or
reasonably foreseeable actions that share
a common geography or timing, such as
multiple activities within a defined
boundary (i.e., Federal land or facility).
Agencies should exercise their
judgment and discretion when
determining whether to prepare a PEA
or PEIS.17 CEQ recommends agencies
give particular consideration to
preparing a PEA or PEIS when: (1)
Initiating or revising a national or
regional rulemaking, policy, or program;
(2) adopting a plan for managing a range
of resources; or (3) making decisions on
common elements or aspects of a series
or suite of closely related projects.
A programmatic NEPA review may
not be a cost effective effort for an
agency if the effort required to perform
the review is substantially greater than
the time and effort saved in analyzing
subsequent proposals or if the lifespan
of the programmatic NEPA document is
limited. Agencies usually benefit by
asking two questions when determining
whether to prepare a programmatic
NEPA review: (1) Could the PEA or PEIS
be sufficiently forward looking to
contribute to the agency’s basic
planning of an overall program?; and (2)
does the PEA or PEIS provide the
agency the opportunity to avoid
‘segmenting’ the overall program from
subsequent individual actions and
thereby avoid unreasonably constricting
the scope of environmental
regulation? 18
IV. Practical Considerations for
Programmatic Reviews and Documents
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This section provides practical
guidance to help agencies implement a
successful programmatic approach. The
following points will be addressed:
• Answering the fundamental
question of what decision(s) does the
agency need to make;
• Answering the question of what
actions would the agency subsequently
want to take based on the programmatic
NEPA review;
17 National Wildlife Federation v. Appalachian
Regional Commission, 677 F.2d 883, 888 (D.C. Cir.
1981).
18 Piedmont Environmental Council v. F.E.R.C.,
558 F.3d 304, 316 (4th Cir. 2009) (quoting Nat’l
Wildlife Fed’n v. Appalachian Reg’l Comm’n, 677
F.2d 883, 888–89 (D.C. Cir. 1981)) (agency can do
all individual EISs but not if that is an attempt to
segment the program and thereby limit regulation;
if so, a programmatic should have been done).
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• Determining the purpose and need
of the programmatic proposal to be
analyzed and decided on and its
relationship to subsequent tiered level
proposals and decisions;
• Defining a practical scope for the
programmatic review that is appropriate
to the particular type of broad action
being analyzed;
• Gathering and analyzing data for
broadly scoped actions that potentially
affect large geographic areas;
• Coordinating among the multiple
overlapping jurisdictions and agencies
that may have a role in assessing or
determining whether and how a
subsequent action may proceed;
• Communicating the scope, content,
and purpose of a programmatic NEPA
analysis in a way the parties involved in
the process and the public can
understand;
• Communicating the opportunities
for public engagement in the
development of the tiered NEPA
reviews; and
• Maintaining the relevancy of
programmatic NEPA documents for
subsequent tiered analyses.
A. Determining the Utility and Scope of
the Programmatic NEPA Review
Agencies should carefully consider, as
early as practicable, the benefits of
making the initial broad decisions and
the amount of effort required to perform
the programmatic review to ensure that
using the programmatic approach
facilitates decision-making and merits
the investment of time and effort. To
determine the utility of the PEA or PEIS,
and the scope of analysis, an agency
may find it helpful to consider:
• What Federal decisions need to be
made now and in the future regarding
the broad Federal action being
proposed?
• What are the meaningful decision
points 19 from proposal through
implementation, and where are the most
effective points in that continuum to
address the potential for effects?
• What are the appropriate
geographic limits and time frames for
this programmatic review?
• Is it necessary to analyze the
particular effects of a proposed action at
a broader scale to facilitate analysis and/
or decision-making at a more refined
(i.e., tiered) level, and is a programmatic
NEPA review the best way to do this?
For example, a programmatic NEPA
review may serve as an efficient
mechanism to describe Federal agency
19 40 CFR 1502.4(b) (‘‘[a]gencies shall prepare
statements on broad actions so that they are
relevant to policy and are timed to coincide with
meaningful points in agency planning and
decisionmaking’’).
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efforts to adopt sustainable practices for
energy efficiency, reduce or avoid
greenhouse gas emissions, reduce
petroleum product use, and increase the
use of renewable energy including
bioenergy, as well as other sustainability
practices. The definition of ‘‘proposal’’
for the purposes of NEPA review should
be considered when answering this
question.20
• How long will the programmatic
review continue to provide a relevant
framework for tiering subsequent
actions and what factors may result in
the need to supplement or refresh the
review?
1. Purpose and Need
The purpose and need statement is
key to developing the NEPA review, as
it establishes the scope of the analyses,
range of reasonable alternatives, and
frames the decision to be made. The
purpose and need for a programmatic
review will differ from the purpose and
need for a project- or site-specific EA or
EIS. The purpose and need for a PEA or
a PEIS needs to be broad enough so as
to avoid eliminating reasonable
alternatives for a tiered EA or EIS and
focused enough for the agency to
conduct a rational analysis of the
impacts and allow for the public to
provide meaningful comment on the
programmatic action. The purpose and
need sets the tone for the scoping
process and the course for conducting
the NEPA review.
2. Scope of Analysis
The scope consists of the range of
actions, the alternatives, and the
associated impacts to be considered in
a NEPA review.21 A programmatic
NEPA review, like project- or sitespecific NEPA reviews, must address
the potentially significant
environmental impacts of a proposed
Federal action. Consequently, the nature
of the pending decision drives the scope
of the environmental analyses and
documentation. The planning process
for the proposed action and the
development of a programmatic NEPA
review should start as early as
practicable. By starting the planning
process early, there should be sufficient
time for establishing the reasonable
scope of actions, alternatives, and
impacts in the programmatic review,
20 40 CFR 1508.23 The regulation states that a
‘‘proposal’’ exists at that stage in the development
of an action when an agency subject to the Act has
a goal and is actively preparing to make a decision
on one or more alternative means of accomplishing
that goal and the effects can be meaningfully
evaluated. It goes on to explain that a proposal may
exist in fact as well as by agency declaration that
one exists.
21 40 CFR 1508.25.
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and identifying the decisions the
programmatic review will support so
that the level of analysis is clear from
the start.
3. The Proposed Action
In addition to unconnected single
actions, there are three types of actions
set out in 40 CFR 1508.25(a) that may
be analyzed in NEPA reviews, including
those that are programmatic: connected
actions, cumulative actions, and similar
actions.
Connected actions are those that
enable other actions that require a
Federal action, or where the enabled
action cannot or will not proceed unless
the underlying action is taken; or are
interdependent parts of a larger action
and depend on the larger action for
justification.22 Projects that have
independent utility are not connected
actions.23
• Example: An agency could analyze
a proposed pesticide aerial application
program for a large metropolitan area in
the same NEPA document with related
actions such as the following:
equipment purchase and location;
pesticide purchase, storage methods and
location; and loading locations that will
be needed. These are examples of
connected actions that are
interdependent parts of the larger
proposed pesticide aerial application
program.
Cumulative actions are those with
impacts which, when viewed with other
proposed actions, have the potential for
cumulatively significant impacts and
should therefore be discussed
collectively in the same NEPA review.24
• Example: A proposed pesticide use
program can be analyzed in conjunction
with a proposed pest eradication
program as cumulative actions because
they have the potential to affect the
same resources. Note that cumulative
effects would have to be considered
when conducting the NEPA reviews for
each of the proposals, whether in
separate or combined NEPA reviews.
Similar actions are those which, when
viewed with other reasonably
foreseeable or proposed agency actions,
have similarities such as timing,
impacts, alternatives, or methods of
implementation.25 A programmatic
NEPA review provides a platform for
evaluating their environmental
consequences together.
• Example: Several energy
development programs proposed in a
region of the country are similar actions
if they have similar proposed methods
of implementation and best practice
mitigation measures that can be
analyzed in the same document.
Broad Federal actions may be
implemented over large geographic
areas and/or a long time frame.
Programmatic NEPA documents must
include connected and cumulative
actions, and the responsible official
should consider whether it is helpful to
include a series or suite of similar
actions.26
Agencies may prepare a single NEPA
document to support both programmatic
and project-specific proposals. Such an
approach may be appropriate when an
agency plans to make a broad program
decision, as well as decisions to
implement one or more specific projects
under the program. For example, the
programmatic approach may address
both the broad impacts of the proposed
broad Federal action and provide
sufficiently detailed environmental
analyses for specific decisions, such as
determining the locations and designs of
one or more proposals to implement the
broad Federal action. The challenge for
agencies is to clearly communicate why
some environmental aspects are
analyzed in greater detail—such as the
project- or site-specific effects—than
others—such as the programmatic
effects. It is essential to clearly state the
decisions the agency proposes to make
based directly on the PEA or PEIS and
distinguish the analysis of impacts and
alternatives of the broad programmatic
proposals from the project- or sitespecific proposals.
4. The Alternatives
Alternatives in a programmatic NEPA
review are expected to reflect the level
of the broad Federal action being
proposed and would include the
standard NEPA requirements for
alternatives.27 In situations where there
is an existing program, plan or policy,
CEQ expects that the no-action
alternative would typically be the
continuation of the present course of
action until a new program, plan or
policy is developed.28
When preparing the programmatic
NEPA review for a policy, plan,
program, or project, alternatives can be
considered at the programmatic level to
support focusing future decisions and
eliminating certain alternatives from
detailed study in subsequent NEPA
reviews. By clearly articulating the
26 40
22 40
CFR 1508.25(a)(1).
23 40 CFR 1508.25(a)(1)(iii).
24 40 CFR 1508.25(a)(2).
25 40 CFR 1508.25(a)(3) and 1502.4(c).
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CFR 1508.25(a).
CFR 1508.25(b) and 1508.9(3)(b).
28 46 FR 18026 (addressing in question and
answer three what is included in a ‘‘no action’’
alternative).
nature of subsequent tiered decisions,
agencies can craft the alternatives for a
programmatic review to focus the scope
and development of alternatives for the
subsequent tiered NEPA documents. By
articulating the reasoned choice
between alternatives, with a discussion
of why considered alternatives were not
chosen, the range of alternatives in
tiered NEPA reviews can be
appropriately narrowed. Including a
brief written discussion of the reasons
alternatives were eliminated 29 should
provide the justification for narrowing
the range of reasonable alternatives to be
considered in those tiered NEPA
documents.
5. The Impacts
All NEPA reviews are concerned with
three types of reasonably foreseeable
impacts: direct, indirect, and
cumulative.30 The contrast between a
programmatic and a project- or sitespecific NEPA review is most strongly
reflected in how these environmental
impacts are analyzed. Because impacts
in a programmatic NEPA review
typically concern environmental effects
over a large geographic and/or time
horizon, the depth and detail in
programmatic analyses will reflect the
major broad and general impacts that
might result from making broad
programmatic decisions. Agencies
should be clear about the context of the
decision to be made and how it relates
to the intensity of any potential impacts.
As noted previously, agencies may
propose decisions regarding standard
mitigation protocols and/or operating
procedures in a programmatic NEPA
review and thereby provide a framework
and scope for the subsequent tiered
analysis of environmental impacts. For
example, proposals for long range
energy or transportation infrastructure
programs are potentially good
candidates for PEAs and PEISs that
include an assessment of how the
programs will contribute to or reduce
water quantity and quality. Discussions
of water quantity and quality could then
be incorporated by reference in tiered
NEPA reviews. By identifying potential
program impacts early, particularly
cumulative and indirect impacts,
programmatic NEPA reviews provide
opportunities to modify program
components and avoid or mitigate
adverse impacts when developing
subsequent proposals.
27 40
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29 40
30 40
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CFR 1502.14(a).
CFR 1508.7 and 1508.8.
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B. Collaboration, Public Engagement,
and Coordination With Other
Environmental Reviews
1. Importance of Collaboration and
Cooperation
The types of actions that agencies
analyze in programmatic reviews may
feature some jurisdictional complexity.
Impacts on state, tribal and private
lands, and potentially overlapping
authorities between agencies and
governments with different missions
and authorities should be considered in
programmatic reviews that address
resources or actions across jurisdictional
boundaries. Collaboration and
cooperation among Federal agencies,
tribes, and state and local governments
is especially critical for successful
completion of meaningful programmatic
NEPA reviews. Scoping early in the
process provides agency decisionmakers with access to other agencies’
and governments’ expertise and can
help agencies identify broad scale
issues, develop alternatives for analysis,
identify the appropriate temporal and
spatial parameters, and determine the
appropriate depth of analysis or level of
detail for the NEPA review.
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2. Public Involvement
Engaging the public is particularly
important when developing
programmatic NEPA reviews in order to
ensure agency objectives are understood
and to clarify how a programmatic
review relates to subsequent tiered
reviews. Effective public engagement
also will help manage expectations with
regard to the purpose and need, the
scope of the programmatic NEPA
review, and the purpose and need and
scope of subsequent site- and projectspecific NEPA reviews. Outreach to
potentially interested stakeholders
should begin as early as possible—even
in advance of formal scoping periods—
to afford the public a meaningful
opportunity to comment on and shape
the NEPA review.
When the public has a chance to see
the big picture early it can provide fresh
perspectives and new ideas before
determinations are made that will shape
the programmatic review as well as
subsequent tiered proposals. Early
outreach also provides an opportunity
to develop trust and good working
relationships that may extend
throughout the programmatic and
subsequent NEPA reviews and continue
during the implementation of the
proposed action.31 An agency can
31 40
CFR 1501.7; see also Council on
Environmental Quality, Collaboration in NEPA—A
Handbook for NEPA Practitioners (October 2007),
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encourage early public participation by
clearly explaining to the public not only
what the proposed programmatic
evaluation is meant to accomplish, but
also how it relates to future actions, and
why the public should get involved at
the programmatic stage and not wait for
any tiered reviews. Clarity of approach
is essential to avoid the impression that
a programmatic NEPA review creates a
situation whereby the public is too early
to raise issues in the broader
programmatic analysis and then too late
to raise them in any subsequent tiered
analyses.
Stakeholders for a programmatic
review may span multiple states and
large areas. Consequently, public
engagement should be well thought
through to include all the potentially
interested Federal and state agencies,
tribes, local governments, private
organizations, and individual citizens.32
3. Coordination With Other
Environmental Reviews
The purpose and need statement and
the proposed action for the
programmatic NEPA review are critical
for determining the compliance
requirements under other applicable
laws and regulations, such as the
Endangered Species Act, National
Historic Preservation Act, and Clean
Water Act. They are also critical for
determining when these other reviews
must be completed and for developing
a strategy to address all environmental
review and consultation requirements in
a coordinated manner. Coordinating
compliance with other environmental
reviews supports a broad discussion,
facilitates a comprehensive project
management schedule, provides
opportunities to meet data, public
engagement, and documentation
requirements more efficiently, and
generally promotes greater transparency
in Federal decision-making.
Programmatic NEPA analysis and
subsequent tiered NEPA analysis
support a phased decision-making
process that allows certain statutory and
regulatory compliance to be achieved at
the programmatic level. The nature of
the decision at each phase and the
extent to which it may constrain the
subsequent consideration of alternatives
will help determine an agency’s overall
available at https://ceq.hss.doe.gov/nepa/nepapubs/
Collaboration_in_NEPA_Oct2007.pdf.
32 For example, a good way to reach out to such
a large and diverse public is through nongovernmental organizations and citizen’s groups.
These organizations frequently know what their
constituents care about and they may have effective
means for communicating with those constituents.
Agencies are also encouraged to use conference
calls, web meetings and teleconferences to facilitate
easy participation by the interested public.
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environmental compliance
requirements. NEPA requires a full
evaluation of all specific impacts when
the agency proposes to make an
irreversible and irretrievable
commitment of the availability of
resources to a project. This usually
occurs at the site-specific level.33
Provided the PEA or PEIS has
sufficient specific data and information,
it may satisfy other relevant legal
requirements for site-specific future
actions, even when there is no
irreversible or irretrievable commitment
of resources at the programmatic level.
The determination of whether a
particular decision in a phased or
incremental decision-making process
represents this level of commitment
begins with a well formulated
description of the proposed action.34
Agencies should be aware that
preparing a programmatic NEPA review
is not a substitute for compliance with
other environmental laws.
For example, approval of land use
plans that establish future management
goals and objectives for resource
management, and the measures to
achieve those goals and objectives, do
not necessarily require completion of
the Section 106 process under the
National Historic Preservation Act. In
some cases, an agreement with
stakeholders, such as a programmatic
agreement pursuant to sec. 106 of the
National Historic Preservation Act,
demonstrates an agency’s compliance
requirements for phased decisions being
analyzed through a programmatic NEPA
review. For instance, where a Federal
agency’s broad decision will narrow the
opportunities for adverse effects in
future specific proposals, then the
agency may initiate the sec. 106 process
as part of the programmatic review. This
will allow the agency to complete that
process by establishing steps for
meeting its responsibility as it
implements the broad decision and
prior to subsequent project- and sitespecific proposals.
Agencies should clearly and concisely
articulate their intentions to defer
particular environmental review and
consultation requirements for
consideration until a subsequent
project- or site-specific proposal is
developed. When deferring these
requirements, agencies may still need to
analyze and address related statutory
requirements to some extent in the
programmatic document. For example,
if the subsequent actions tiered to the
33 N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886
(9th Cir. 1992).
34 Friends of Yosemite Valley v. Norton, 348 F.
3d, 789, 801 (9th Cir. 2003).
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programmatic document will require
authorization under sec. 404 of the
Clean Water Act prior to construction,
agencies should include, after
consultation with the U.S. Army Corps
of Engineers, a discussion of the range
of alternatives that are necessary to
demonstrate compliance with the sec.
404(b)(1) Guidelines, and whether there
are any practicable alternatives that
have less adverse impact on the aquatic
ecosystem—and do not have other
significant environmental effects—will
be made at the project-specific or sitespecific level.
C. Preparing the Documents
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1. Programmatic Environmental
Assessment or Programmatic
Environmental Impact Statement?
Programmatic approaches are usually
associated with EISs and tiered
documents more typically with
proposal-specific EAs. Tiering an EA
from a PEIS is appropriate when there
are no new significant affects or
considerations and the programmatic
NEPA review addresses those measures
that tiered proposals can rely on to
address and reduce the significance of
the site- or project-specific impacts.
An agency may prepare a PEA to
determine whether an EIS is required or
when considering a proposal that does
not have significant impacts at the
programmatic level. Following a PEA
that results in a finding of no significant
impact (FONSI), an agency may tier to
an EA that results in a finding of no
significant impact,35 or may tier to an
EIS when a subsequent site- or projectspecific proposal has the potential for a
significant impact on the environment.
Whether the agency prepares a PEA or
a PEIS, that programmatic review
should explain how the agency intends
to use it to complete future proposalspecific NEPA reviews. Reasonably
available information that should be
provided both during scoping and in the
PEA or PEIS includes the expected
timing of the tiered review(s) as well as
the issues, and depth of analysis, it is
expected to consider. At the project- or
site-specific level, it is necessary to
consider the potential impacts that have
not been analyzed and considered in the
previous programmatic review to which
it tiers.
2. Level of Detail in Programmatic
NEPA Documents
A PEA or PEIS addresses the broad
environmental consequences relevant at
the programmatic level. A subsequent
tiered EA or EIS will address more
35 Northern Plains Resource Council v. Lujan, 874
F.2d 661, 665–66 (9th Cir. 1989).
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particularized considerations, but can
benefit from the programmatic by
summarizing and incorporating by
reference parts of it.36 For example, with
the Forest Service’s programmatic
Gypsy Moth Supplemental EIS, the PEIS
analyzed the human health and
ecological risk assessments for each
pesticide approved for use in the Gypsy
Moth Eradication Program thereby
eliminating the need for such analysis
when individual spraying projects are
proposed. The PEIS analyzed and
disclosed these risks, and deferred to
site or project level analyses the specific
application of these risk data to how the
insecticides would be used in a given
project (e.g., dose rates, number of
applications, presence of ‘‘sensitive
populations’’) and other specific issues
and concerns raised during scoping.
The PEA or PEIS must provide
sufficient detail to foster informed
decision-making that reflects broad
environmental consequences from a
wide-ranging federal program.37 Site- or
project-specific impacts need not be
fully evaluated at the programmatic
level when the decision to act on a site
development or its equivalent is yet to
be made.38 Alternatives need only be
specific enough to make a reasoned
choice between programmatic
directions. The alternatives need not
consider every specific aspect of a
proposal. For example, a programmatic
analysis of a plan would not require
consideration of detailed alternatives
with respect to each aspect of the plan—
otherwise a programmatic analysis
would be impossible to prepare and
would become a compilation of a vast
series of site specific analyses.39
The following considerations may be
helpful to determine the scale and scope
of impacts to be addressed in a
programmatic NEPA review:
• First, what are the appropriate
scales of the affected environment to be
analyzed (e.g., watershed, basin, etc.)?
• Second, what environmental
impacts are of concern at this scale?
• Third, what information can be
garnered about environmental impact
criteria (thresholds) to assist in
describing when those impacts are best
addressed in detail?
Determining the level of detail
appropriate to a programmatic analysis
requires weighing several factors,
36 Nevada v. Dep’t of Energy, 372 U.S. App. DC
432 (D.C. Cir. 2006).
37 Found. On Econ. Trends. v. Heckler, 756 F.2d
143, 159 (D.C. Cir. 1985).
38 Citizens for Better Forestry v. U.S. Dep’t of
Agriculture, 481 F. Supp. 2d 1059, 1086, (D. Cal.
2007).
39 Greenpeace v. National Marine Fisheries
Service, 55 F. Supp. 2d 1248, 1276 (D. Wash. 1999).
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including the extent of the
interrelationship among proposed
actions, the scale and scope of any
subsequent decisions, as well as
practical considerations of feasibility.
Resolving these issues will require the
expertise of the agencies responsible for
the proposed action informed by the
agencies responsible for the potentially
impacted resources.40
3. Depth of Impact Analysis in
Programmatic NEPA Documents
The agency is obligated to conduct a
meaningful impact analysis in
accordance with NEPA, and that
analysis should be commensurate with
the nature and extent of potential
impacts of the decision being made. A
programmatic NEPA review should
contain sufficient discussion of the
relevant issues and opposing viewpoints
to enable the decision-maker to take a
‘‘hard look’’ at the environmental effects
and make a reasoned choice among
alternatives.41 There should be enough
detail to enable those who did not have
a part in its compilation to understand
and meaningfully consider the factors
involved.42
A broad (e.g., regional) description
may suffice for characterizing the
affected environment in most
programmatic NEPA reviews, so long as
potentially impacted resources are
meaningfully identified and evaluated.
Impacts can often be discussed in a
broad geographic and temporal context
with particular emphasis on cumulative
impacts. Those impacts can often be
shown in a meaningful way by
displaying a range of potential effects.
The scope and range of impacts may
also be more qualitative in nature than
those found in project- or site-specific
NEPA reviews.
It may be more difficult for an agency
to analyze the environmental impacts in
depth when there is no clear
indication—no site- or project-specific
proposal pending—for the level of
activity that may follow a programmatic
decision.43 A programmatic NEPA
review should carefully consider the
scope of both the programmatic and the
subsequent tiered NEPA review. CEQ’s
1981 scoping guidance addressed this
issue and the need to be clear about the
type of programmatic NEPA review.
[I]f a proposed program is under review, it
is possible that site specific actions are not
yet proposed. In such a case, these actions
40 Texas Committee on Natural Resources v.
Bergland, 573 F. 2d 201 (5th Cir. 1978).
41 Natural Resources Defense Council v. Morton,
458 F.2d 827, 838 (D.C. Cir. 1972).
42 Baltimore Gas and Electric Co v. NRDC, 462
U.S. 87 (1983).
43 40 CFR 1508.23.
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are not addressed in the EIS on the program,
but are reserved for a later tier of analysis.44
Thus, the deferred analysis should be
identified and the intended use of
tiering made clear at the outset of
scoping, and articulated in the
programmatic review. Informing
participants and the public of the
expected timing of the tiered review(s),
as well as the issues and depth of
analysis, allows them to concentrate on
the issues at hand, rather than on those
that will be addressed later. Courts have
affirmed NEPA’s requirement that
Federal agencies document the
environmental impacts of proposed
broad actions, such as programs,
recognizing the difficulty in predicting
the level of activity that will occur and
that it may not be possible to analyze
thoroughly the environmental effects of,
and the resource commitments involved
in, such a broad proposed activity.45
For example, in the PEIS for the
Container Terminal Development Plan
prepared by the Port of Seattle Marine
Planning & Development Department,
the port determined that it was
impossible to know the precise demand
for container service in the future, and
therefore it was impossible to predict
the precise location, type and timing of
specific facilities and their
environmental impacts. Recognizing the
uncertainties involved, the PEIS
evaluated potential environmental
impacts and opportunities
comprehensively by focusing on a
bounded range of potential activities
and their impacts. The port’s Container
Plan projected a low and high range for
container service demand and a range of
new or improved facilities. The EIS
evaluated strategies for meeting low and
high range demand and the preferred
alternative based on the plan, providing
a flexible market-driven approach in
recognition of the dynamic nature of the
shipping industry and supply of
regional container facilities.46
D. Mitigation and Monitoring
emcdonald on DSK67QTVN1PROD with PROPOSALS
Programmatic NEPA reviews provide
an opportunity for agencies to
incorporate comprehensive mitigation
planning and monitoring strategies into
the Federal policymaking process at a
broad or strategic, rather than specific,
44 Council on Environmental Quality,
Memorandum for General Counsels, NEPA
Liaisons, and Participants in Scoping (April 30,
1981), available at https://ceq.hss.doe.gov/nepa/
regs/scope/scoping.htm.
45 Kleppe v. Sierra Club, 427 U.S. 390 (1976).
46 Final Environmental Impact Statement,
Container Terminal Development Plan, Port of
Seattle Marine Planning & Development
Department 1–17 (October 1991) (on file with the
Council on Environmental Quality).
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or site-by-site, level. These analyses can
promote sustainability and allow
Federal agencies to advance the nation’s
environmental policy as articulated in
sec. 101 of NEPA.47
By identifying potential adverse
impacts early during the broad
programmatic planning, programmatic
NEPA reviews provide a unique
opportunity to modify aspects of the
proposal and subsequent tiered
proposals to avoid or otherwise mitigate
those impacts. A thoughtful and broadbased approach to planning for future
development can include best
management practices, standard
operating procedures and
comprehensive mitigation measures that
address impacts on a broad
programmatic scale (e.g., program-,
region-, or nation-wide). These can
expedite the preparation of subsequent
project- or site-specific proposals by
establishing siting, design, operational,
or other relevant implementation
criteria, requirements, and protocols.
The subsequent tiered NEPA review
would then include those measures to
address potentially significant impacts
and focus on the impacts and mitigation
alternatives available at the project- or
site-specific level that were not
considered in the PEA or PEIS.
For example, a Forest Service and
Bureau of Land Management PEIS for
coal bed methane development on
Federal lands in San Juan National
Forest established siting and
engineering techniques and best
management practices to reduce the
effects of coal bed methane
development on surface water quality,
quantity, and use; established a suite of
mitigation measures for when pipelines,
roads, or power lines crossed a stream,
wetland, or riparian area; established
the development of site-specific
mitigation plans; and required
monitoring plans for individual wells
that would disturb wetlands or riparian
areas.48 These types of programmatic
decisions provide valuable information
for project proponents (e.g., applicants
for Federal licenses or rights-of-way) as
they design proposals and
implementation activities and give the
public insight into the kinds of
protections that would be afforded in
designing and permitting such facilities.
Programmatic NEPA reviews also
afford agencies the opportunity to
develop monitoring programs to address
impacts on a broad scale. This provides
47 42 U.S.C. 4331. See also E.O. 13423, 72 FR
3919 (2007), available at ceq.eh.doe.gov/nepa/regs/
Executive_Order_13423.htm.
48 San Juan Citizens Alliance v. Stiles, 654 F.3d
1038 (10th Cir. 2011).
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agencies the opportunity to ensure that
mitigation commitments on the
programmatic level are actually being
implemented. Further, it allows
agencies to determine whether the
mitigation measures achieved the
environmental outcomes they were
designed to accomplish.49
Finally, monitoring is critical when
agencies establish adaptive management
strategies in a programmatic NEPA
document to increase their flexibility in
developing and analyzing subsequent
resource management proposals.
Identifying triggers for changing the
course of implementation and the
associated effects and analyzing those
impacts at the programmatic level, can
allow the agency to change the course
of implementation without the need for
developing supplemental NEPA reviews
and the associated documentation.
Ranges of results inform the public and
the decision-maker about what
parameters are acceptable for continued
management under the proposed
adaptive management regime and
monitoring provides assurance that the
environmental impacts have been
adequately considered in the
programmatic review.
E. Handling New Proposals While
Preparing a Programmatic NEPA Review
Agencies are sometimes reluctant to
conduct programmatic NEPA reviews
because of the risk of delaying ongoing
and newly proposed actions. The CEQ
Regulations enable interim actions to
proceed provided certain criteria are
met.50 Typically, proposed actions of
relatively limited scope or scale that
would have local utility may be taken as
an interim action before completing the
programmatic analysis.
The CEQ Regulations address interim
action criteria for site- or projectspecific EAs or EISs when required
PEAs and PEISs are not yet completed.51
Although the CEQ Regulations address
criteria for interim actions specifically
in the context of PEISs, in those cases
where part of a proposed action needs
to proceed while a PEA is being
prepared, agencies should use the
criteria in the CEQ Regulations. The
CEQ Regulations recognize and provide
for situations where the programmatic
review is not available when the
49 Council on Environmental Quality,
Memorandum for Heads of Federal Departments
and Agencies: Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact
(January 14, 2011), available at https://ceq.hss.doe.
gov/current_developments/docs/Mitigation_and_
Monitoring_Guidance_14Jan2011.pdf.
50 40 CFR 1506.1.
51 40 CFR 1506.1(a) and (c).
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program is at an investment stage or
there is a commitment to
implementation that will limit future
alternatives.52
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The CEQ Regulations state, in relevant part
that while work on a required program
environmental impact statement is in
progress and the action is not covered by an
existing program statement, agencies shall
not undertake in the interim any major
Federal action covered by the program which
may significantly affect the quality of the
human environment unless such action: Is
justified independently of the program; is
itself accompanied by an adequate
environmental impact statement; and will
not prejudice the ultimate decision on the
program. Finally, the regulations state that
interim action prejudices the ultimate
decision on the program when it tends to
determine subsequent development or limit
alternatives.53
Under the first criterion regarding
independent justification, agencies may
take an interim action that the agency
determines could be undertaken
irrespective of whether or how the
program goes forward, assuming the
other two criteria are met. For example,
in cases where an agency is obligated by
law to carry out a proposed interim
action, the agency should be able to
demonstrate that the action has
independent utility.
The second criterion makes it clear
that an EIS must be prepared for a
proposed interim action that has the
potential for significant environmental
impacts. Although completion of a PEIS
first may be more efficient than
preparing an adequate EIS for a
proposed interim action, the agency
could complete an adequate EIS for the
interim action. In cases that don’t
involve significant impacts, an EA
would be sufficient to provide adequate
NEPA support to meet this second
criterion.
Under the third criterion, agencies
may take an interim action when they
determine that the proposed interim
action would not jeopardize the
objective consideration of reasonable
alternatives. Agencies should take care
to distinguish interim actions from
ongoing actions. An agency does not
need to suspend all operations because
it has elected to prepare a programmatic
NEPA document. For example, in the
case of an area-wide or site-wide PEIS
considering a new proposed operations
plan, ongoing operations within the area
or site may continue and such ongoing
operations would be considered under
the no action alternative in the PEIS.
52 40
53 40
CFR 1502.4(c)(3).
CFR 1506.1(c).
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F. The Decision Document
The decision is documented in a
Record of Decision (ROD) following
preparation of a PEIS or a decision may
be based on a FONSI following
preparation of a PEA. The decision
document should clearly explain the
decision and indicate whether tiered
analyses will follow. For example, the
agency should articulate its intentions
with regard to future decisions, describe
how the agency will use the
programmatic NEPA document as a
basis for tiering future NEPA reviews,
and indicate when any deferred issues
will be addressed.
The programmatic decision document
following a PEA or a PEIS should
provide the information required in a
ROD. It should include a description of
the alternatives considered, the
environmentally preferable alternative,
economic and technical considerations,
agency statutory missions, essential
considerations of national policy, and
all practicable means to avoid or
minimize environmental harm from the
alternative selected that were adopted
or, if not, why not. A monitoring and
enforcement program should also be
adopted and summarized for any
mitigation where that is applicable.54
V. Subsequent Proposal-Specific NEPA
Reviews
A. Deferred Issues
Certain issues may not be addressed
in a PEA or PEIS, but rather are
discussed fully in subsequent tiered
NEPA analysis. These deferred issues
can include issues that will be
addressed in additional tribal
consultations or further National
Historic Preservation Act Section 106
consultation, Endangered Species Act
Section 7 consultation, or other
determinations and consultations. To
provide clarity to the public and the
decision-maker, programmatic NEPA
reviews should make clear when the
analysis of potential environmental
impacts will be deferred. When
preparing a PEA, it is acceptable for an
agency to limit its analysis to those
foreseeable effects resulting from the
programmatic decision at hand. The
programmatic document should clearly
explain that, while there may be other
effects, they do not affect the
programmatic decision and full review
of these issues is being deferred. In this
case agencies should logically explain
why there is no effect on the
programmatic decision, and also
include sufficient information to
explain where and when deferred issues
54 40
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50587
raised by the public and/or regulatory
agencies will be addressed.
The scoping process and subsequent
public involvement provide an
opportunity to clarify the triggers for
determining when subsequent reviews
and opportunities for review and
comment will take place.55 The
programmatic document should also,
whenever practicable, explain how and
when the interested parties will be
notified of any subsequent reviews.
B. Tiering NEPA Reviews
One of the main advantages of a
programmatic NEPA review is the
ability to tier subsequent reviews, such
as site- or proposal-specific reviews.56
Tiering has the advantage of not
repeating information that has already
been considered at the programmatic
level so as to focus and expedite the
preparation of the tiered NEPA
review(s). When a PEA or PEIS has been
prepared and an action is one
anticipated in, consistent with, and
sufficiently explored within the
programmatic NEPA review, the agency
need only summarize the issues
discussed in the broader statement and
incorporate discussion from the broader
statement by reference and concentrate
on the issues specific to the subsequent
tiered proposal.57
There are times when an analysis at
one level is sufficient. For example,
when the programmatic review has
taken the required ‘‘hard look’’ at the
potential environmental impacts, an
agency can rely upon the analysis
provided in the PEA or PEIS.58 On the
other hand, an agency may determine
that detailed analysis should be deferred
to the tiered analysis. The programmatic
review must be clear when issues are
being deferred, and any subsequent
tiered documents will need to review
briefly what level of analysis has been
considered and whether it is still
contemporary.
While CEQ Regulations specifically
authorize an agency to tier other NEPA
reviews to an EIS, there is no barrier to
tiering an EIS to an EA prepared in
accordance with NEPA, the CEQ
Regulations, and agency NEPA
implementing procedures, so long as a
sufficient explanation for such an
approach is proffered. A programmatic
NEPA review may defer some decisions,
and make use of tiering and
incorporation by reference, and still be
55 See 40 CFR 1501.7 (scoping), sec. 1501.4
(public involvement in EAs), and sec. 1506.6
(public involvement).
56 40 CFR 1502.20.
57 40 CFR 1502.20.
58 Natural Resources Defense Council v. Morton,
458 F.2d 827, 838 (D.C. Cir. 1972).
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considered a ‘‘hard look.’’ Cases that
address ‘‘improper tiering’’ involve
situations where an agency attempts to
tier to a non-NEPA document.59
Confusion over what level of NEPA
analysis is required for tiered proposals
may occur when a programmatic EIS is
complete and the site-specific project
will have a significant impact as
indicated in the programmatic
document. When this occurs, the
appropriate question is not if there is a
significant impact from the proposed
action, but if there is a new significant
impact that was not already considered
and addressed in the programmatic
review. If there are no new significant
impacts, an EA may be appropriate
instead of an EIS so long as the aspects
of the proposed action that involve
significant effects have not changed
since the PEIS, and the agency presents
its reasons for determining that the
effects and potential mitigation
measures were adequately considered in
the PEIS. Consequently, as an agency
determines the appropriate scope for a
PEIS, it should consider the potential
for significant site- or project-specific
impacts and the cost/benefit of
addressing them programmatically.
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C. New Information and Supplementing
Documents
The CEQ Regulations provide a
procedural framework for keeping
environmental analyses current. They
require agencies to prepare supplements
upon determining there is significant
new information of relevance to the
proposed action or its impacts.60 The
possibility of new information arising
after an EA or EIS is completed exists
regardless of whether that NEPA review
is a programmatic review.
When new information reaches an
agency, it should be initially screened
with respect to the following
considerations:
59 Kern v. BLM, 284 F.3d 1062 (9th Cir. 2002), the
Court found that, ‘‘tiering to a document that has
not itself been subject to NEPA review is not
permitted, for it circumvents the purpose of NEPA.’’
In Northcoast Environmental Center v. Glickman,
the Court found that, ‘‘[a]lthough CEQ procedures
allow agencies to incorporate by reference certain
materials to cut down on the bulk of an EIS, they
cannot ‘tier’ their site-specific EISs to the broader
POC program where the program itself has not been
subject to NEPA procedures.’’ Courts have also held
that agencies can’t properly tier when agencies tier
to an outdated PEIS (League of Wilderness
Defenders v. Marquis-Brong, 259 F. Supp. 2d 115,
1122–23 (D. Or. 2003), or an inadequate or flawed
PEIS (Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800, 811 (9th Cir. 1999)).
60 See 40 CFR 1505.3 (monitoring), 1502.9
(supplementation). See also Seattle Audubon
Society v. Moseley, 798 F. Supp. 1473, (D. Wash.
1992) (‘‘[a] federal agency has a continuing duty to
gather and evaluate new information relevant to the
environmental impact of its actions, even after
release of an EIS’’).
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• Does the new information pertain to
a programmatic NEPA review that was
prepared for a now-completed decisionmaking process?
• Are there any more decisions to be
made by the agency that would use the
original NEPA review to meet all or a
portion of the agency’s NEPA
compliance responsibilities for any
upcoming decision?
If there are no further decisions to be
made, revising the original
programmatic NEPA review serves no
purpose and is not required. If the new
information is relevant to a future
decision for which the agency intends to
rely upon the original programmatic
NEPA review to meet all or a portion of
its NEPA compliance responsibilities,
then the new information must be
reviewed in order to determine if it has
any potential effect on the content of the
original programmatic review, either in
terms of: (a) The accuracy of the
previously analyzed impacts (direct,
indirect or cumulative); or (b) the
feasibility of the alternatives presented
or their comparative analysis. If
supplementation is not required,
agencies should consider documenting
that determination which, for example,
could be done, through a memorandum
to the record that could be included in
the administrative record for the
programmatic NEPA review.
The agency is responsible for making
a reasoned determination whether new
information raises significant new
circumstances or information regarding
environmental impacts or involves
substantial changes in the actions
decided upon in the programmatic
analysis.61 When a PEA was used, the
determination must consider whether
the PEA and FONSI are sufficient or
whether an EIS is now necessary. If
there is a need to supplement, a
supplemental PEA can address the new
information and result in a FONSI when
the agency’s consideration of the
context and intensity of the effects of
the programmatic proposal warrant a
FONSI.62
When an agency determines there is
a need to supplement a NEPA review,
programmatic NEPA reviews provide
alternative ways to complete that
supplementation. The traditional
approach would be to supplement the
base document, the original PEA or
PEIS. Alternatively, if a new tiered
NEPA review can include consideration
of the programmatic issues, then the
tiered review can also serve as the
vehicle for supplementing the PEA or
PEIS. When the new information’s
61 40
62 40
PO 00000
CFR 1502.9.
CFR 1508.27.
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effects are limited to potential impacts
or alternatives associated with the next
stage, or project- or site-specific
decision, then the tiered analysis can
address the new information without
having to supplement the PEA or PEIS.
VI. The Lifespan of a Programmatic
NEPA Document
Agencies must consider and make
reasonable efforts to anticipate the
length of time the programmatic
decision and its supporting NEPA
review will be maintained and used for
subsequent tiered reviews.
Programmatic documents may become
outdated depending on the specificity
and analyses included in them.
Agencies should determine the factors
that may result in the need to
supplement or refresh the analysis,63
establish criteria for evaluating the
programmatic document for its use as a
basis for subsequent proposal-specific
NEPA, and communicate this to
stakeholders. When a programmatic
review is projected to have a long life
span, then the agency should pay close
attention to the possible effects of new
information.
VII. Conclusions
This guidance is intended to assist
agencies in preparing PEISs and PEAs
that address broad, strategic,
programmatic level analyses. Agencies
should consider using PEAs and PEISs
whenever appropriate. Programmatic
NEPA reviews provide an opportunity
for considering environmental
consequences at a broader level and
enhance the integration of
environmental concerns and mitigations
into an agency’s planning procedures. In
addition, agencies that are able to
clearly explain how specific,
outstanding, or future actions will be
addressed in subsequent tiered
documents, and how the analyses will
be vetted publicly, will ensure that the
public is informed and can improve the
quality of participation and analysis
agencies receive from the public,
thereby enhancing decision-making.
This guidance also is intended to assist
NEPA practitioners in realizing the
benefits of programmatic NEPA reviews.
It should be used in conjunction with
the regulations and guidance previously
issued by CEQ (see relevant excerpts in
Appendix B) and any applicable agency
63 46 FR 18026 (refer to question 32 in CEQ’s 40
Most Asked Questions). As a rule of thumb, if the
proposal has not yet been implemented, or if the
EIS concerns an ongoing program, EISs that are
more than 5 years old should be carefully
reexamined to determine if the criteria in sec.
1502.9 compel preparation of an EIS supplement.
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NEPA procedures established in
accordance with 40 CFR 1507.3.
Appendix A: Programmatic and Tiered
Analyses
Programmatic and tiered analyses
differ in their focus and scope. The
following table indicates the general
differences between programmatic and
subsequent tiered analyses.64
Subsequent (e.g., project- or site-specific) tiered
level
Programmatic level
Nature of Action .......................................
Level of Decision .....................................
Alternatives ..............................................
Scale of Impacts ......................................
Scope of Impacts .....................................
Time Scale ...............................................
Key Data Sources ....................................
Impacts ....................................................
Decision ...................................................
Mitigation .................................................
Strategic, conceptual .............................................
Policy, program, planning, suite of similar
projects.
Broad, general, research, technologies, fiscal
measures, socioeconomic, land use allocations.
Macroscopic, for example, at a national, regional,
or landscape level.
Broad in scale and magnitude ..............................
Long- to medium-term (e.g., Regulatory) ..............
Existing national or regional statistical and trend
data, policy and planning instruments.
Qualitative and maybe quantitative to the degree
possible.
Broad, strategic program, policy, or plan ..............
General, broad suite of potential measures that
could apply and potentially the commitments
on when they will apply.
BILLING CODE 3225–F4–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 140325271–4271–01]
RIN 0648–BE13
List of Fisheries for 2015
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule.
AGENCY:
The National Marine
Fisheries Service (NMFS) publishes its
proposed List of Fisheries (LOF) for
2015, as required by the Marine
Mammal Protection Act (MMPA). The
proposed LOF for 2015 reflects new
information on interactions between
commercial fisheries and marine
mammals. NMFS must classify each
commercial fishery on the LOF into one
of three categories under the MMPA
based upon the level of mortality and
serious injury of marine mammals that
occurs incidental to each fishery. The
classification of a fishery on the LOF
determines whether participants in that
fishery are subject to certain provisions
of the MMPA, such as registration,
observer coverage, and take reduction
plan (TRP) requirements.
emcdonald on DSK67QTVN1PROD with PROPOSALS
SUMMARY:
64 Maria Rosario Partidario, Strategic
´
´
Environmental Assessment (SEA)—current
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Construction, operations, site-specific actions.
Individual project(s).
Specific alternative locations, design, construction, operation, permits, site-specific.
Project level, mainly local.
Localized and specific.
Medium- to short-term (e.g., Permit).
Field work, sample analysis, statistical data, local
monitoring data.
Generally quantifiable (though not always).
Detailed, project- or site-specific, action-oriented.
Specific, precise measures applicable to a proposed action.
Comments must be received by
September 24, 2014.
ADDRESSES: You may submit comments
on the proposed rule, identified by
‘‘NOAA–NMFS–2014–0040’’ by any of
the following methods:
(1) Electronic Submissions: Submit all
electronic comments through the
Federal eRulemaking portal: https://
www.regulations.gov (follow
instructions for submitting comments).
(2) Mail: Submit written comments to
Chief, Marine Mammal and Sea Turtle
Conservation Division, Attn: List of
Fisheries, Office of Protected Resources,
NMFS, 1315 East-West Highway, Silver
Spring, MD 20910.
Comments regarding the burden-hour
estimates, or any other aspect of the
collection of information requirements
contained in this rule, should be
submitted in writing to Chief, Marine
Mammal and Sea Turtle Conservation
Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Silver
Spring, MD 20910, or to the Office of
Information and Regulatory Affairs at
OIRA_submissions@omb.eop.gov.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information
(e.g., name, address, etc.) voluntarily
submitted by the commenter may be
publicly accessible. Do not submit
Confidential Business Information or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
DATES:
[FR Doc. 2014–20199 Filed 8–22–14; 8:45 am]
practices, future demands and capacity-building
needs (2003) (unpublished manuscript) available at
https://www.iaia.org/publicdocuments/EIA/SEA/
SEAManual.pdf?AspxAutoDetectCookieSupport=1.
PO 00000
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50589
the required fields, if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Lisa
White, Office of Protected Resources,
301–427–8494; Allison Rosner, Greater
Atlantic Region, 978–281–9328; Jessica
Powell, Southeast Region, 727–824–
5312; Elizabeth Petras, West Coast
Region (CA), 562–980–3238; Brent
Norberg, West Coast Region (WA/OR),
206–526–6550; Kim Rivera, Alaska
Region, 907–586–7424; Nancy Young,
Pacific Islands Region, 808–725–5156.
Individuals who use a
telecommunications device for the
hearing impaired may call the Federal
Information Relay Service at 1–800–
877–8339 between 8 a.m. and 4 p.m.
Eastern time, Monday through Friday,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
What is the List of Fisheries?
Section 118 of the MMPA requires
NMFS to place all U.S. commercial
fisheries into one of three categories
based on the level of incidental
mortality and serious injury of marine
mammals occurring in each fishery (16
U.S.C. 1387(c)(1)). The classification of
a fishery on the LOF determines
whether participants in that fishery may
be required to comply with certain
provisions of the MMPA, such as
registration, observer coverage, and take
reduction plan requirements. NMFS
must reexamine the LOF annually,
considering new information in the
Marine Mammal Stock Assessment
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Agencies
[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Proposed Rules]
[Pages 50578-50589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20199]
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1505, 1506, 1507, and 1508
Effective Use of Programmatic NEPA Reviews
AGENCY: Council on Environmental Quality.
ACTION: Notice of Availability, Request for Public Comments on Draft
Guidance on Effective Use of Programmatic National Environmental Policy
Act Reviews.
-----------------------------------------------------------------------
SUMMARY: The Council on Environmental Quality (CEQ) is publishing draft
guidance on when and how Federal agencies can effectively use National
Environmental Policy Act (NEPA) programmatic reviews. Guidance on
programmatic NEPA reviews has been requested by the agencies and
attention on programmatic NEPA reviews has increased as agencies are
increasingly undertaking broad landscape scale analyses for proposals
that affect the resources they manage. This guidance is designed to
assist agency decision-makers and the public
[[Page 50579]]
in understanding the environmental impacts from proposed large-scope
Federal actions and activities and to facilitate agency compliance with
NEPA by clarifying the different planning scenarios under which an
agency may prepare a programmatic, broad-scale, review. The guidance
also addresses how agencies can prepare such reviews to ensure they are
timely, informative, and useful for advancing decision-making.
The goal of this guidance is to encourage a more consistent
approach to programmatic NEPA reviews so that the analyses and
documentation will allow for the expeditious and efficient completion
of any necessary tiered reviews. It builds on guidance issued since
1981 that explained the use of tiering and its place in the NEPA
process.
DATES: Submit comments on or before October 9, 2014.
ADDRESSES: The NEPA Draft Guidance Documents are available at https://www.whitehouse.gov/administration/eop/ceq/initiatives/and https://www.nepa.gov. Submit electronic comments on the NEPA Draft Guidance
``Effective Use of Programmatic NEPA Reviews'' to https://www.whitehouse.gov/webform/submit-comments-draft-guidance-programmatic-nepa-reviews, or in writing to The Council on Environmental Quality,
Attn: Horst Greczmiel, 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: This draft guidance will apply to Federal
agencies in accordance with sections 1507.2 and 1507.3 of the CEQ
Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 40 CFR Parts 1500-1508. The National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370, enacted in 1970,
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 decisions before acting. Additionally,
NEPA emphasizes public involvement in government actions affecting the
environment by requiring that the benefits and risks associated with
proposed actions be assessed and publicly disclosed.
CEQ, which is charged with overseeing NEPA, recognizes that NEPA is
a visionary and versatile law that can be used effectively to address
new environmental challenges facing our nation and also to engage the
public widely and effectively. Programmatic NEPA reviews are one method
of NEPA implementation that merits increased attention and use to
facilitate agency compliance with NEPA, and enhance the quality of
public involvement in governmental decisions relating to the
environment. For example, programmatic NEPA environmental reviews
provide another mechanism for agencies to address efforts on improving
environmental reviews for various sectors and types of Federal
activities such as infrastructure \1\ and disaster recovery.\2\ In
March 2012, CEQ published guidance focused on improving the efficiency
and timeliness of NEPA environmental reviews \3\ and this guidance
provides NEPA practitioners with another tool to improve the
effectiveness and efficiency of NEPA reviews.
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\1\ See Federal Infrastructure Projects, Permitting Dashboard,
available at https://www.permits.performance.gov/.
\2\ See Unified Federal Review, available at https://achp.gov/unified_federal_review.html.
\3\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the
National Environmental Policy Act (March 6, 2012), available at
https://ceq.hss.doe.gov/current_developments/docs/Improving_NEPA_Efficiencies_06Mar2012.pdf.
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CEQ interprets its regulations as allowing for the use of a
programmatic review in an Environmental Assessment (EA) as well as in
an Environmental Impact Statement (EIS). A programmatic NEPA review may
be appropriate when the action being considered falls into any one of
the categories of Federal actions subject to NEPA, including: (1)
Adopting official policy; (2) adopting formal plans; (3) adopting
agency programs; and (4) approving multiple actions.
CEQ is seeking public comment on this guidance for 45 days. The
draft guidance and Appendix A which provides a table of key
distinctions between programmatic and the subsequent tiered NEPA
reviews are available for review and comment here and at the CEQ Web
site at https://www.whitehouse.gov/administration/eop/ceq/initiatives/.
Appendices B (CEQ regulations and guidance relevant to programmatic
reviews) and C (examples of successful programmatic NEPA reviews) are
also available for review on that Web site. CEQ welcomes your comments
and any suggestions on all the Appendices.
Public comments are requested on or before October 9, 2014. CEQ
intends to make all comments received available online without change,
including any personal information provided, unless the comment
includes information claimed to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Please do not include any personal information or any information that
you consider to be Confidential Business Information or otherwise
protected as part of a public comment.
Dated: August 14, 2014.
Michael J. Boots,
Acting Chair, Council on Environmental Quality.
Effective Use of Programmatic NEPA Reviews
I. Introduction
A. Purpose of This Guidance
B. The Nature of Programmatic NEPA Reviews
II. Programmatic NEPA Reviews in the Council on Environmental
Quality Regulations
III. When to Use a Programmatic and Tiered NEPA Review
IV. Practical Considerations for Programmatic Reviews and Documents
A. Determining the Scope of the Programmatic NEPA Review
1. Purpose and Need
2. Scope of Analysis
3. The Proposed Action
4. The Alternatives
5. The Impacts
B. Collaboration, Public Engagement, and Coordination With Other
Environmental Reviews
1. The Importance of Collaboration and Cooperation
2. Public Involvement
3. Coordination With Other Environmental Reviews
C. Preparing the Documents
1. Programmatic Environmental Assessment or Programmatic
Environmental Impact Statement?
2. Level of Detail in Programmatic NEPA Documents
3. Depth of Impact Analysis in Programmatic NEPA Documents
D. Mitigation and Monitoring
E. Handling New Proposals While Preparing a Programmatic NEPA
Review
F. The Decision Document
V. Subsequent Proposal-Specific NEPA Reviews
A. Deferred Issues
B. Tiering NEPA Reviews
C. New Information and Supplementing Documents
VI. The Lifespan of a Programmatic NEPA Document
VII. Conclusions
Appendices
[[Page 50580]]
A. Table of Key Distinctions Between Programmatic and Tiered
Analyses
B. CEQ Regulations and Guidance
C. Sample Programmatic Analyses
I. Introduction
A programmatic National Environmental Policy Act (NEPA) review
should assist agency decision-makers and the public in understanding
the environmental impacts from proposed large scope Federal actions and
activities. The analyses in a programmatic review are valuable in
setting out the broad view of environmental harms and benefits, which
can then be relied upon when agencies make decisions based on the
Programmatic Environmental Assessment (PEA) or Programmatic
Environmental Impact Statement (PEIS),\4\ as well as decisions based on
a subsequent (tiered) \5\ NEPA review. Programmatic NEPA reviews should
result in clearer and more transparent decision-making, as well as
provide a better defined and more expeditious path toward decisions on
proposed actions. Agencies are encouraged to revise or amend their NEPA
implementing procedures, if necessary, to allow for analyses at a
programmatic level.
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\4\ The terms PEA and PEIS are also know by some Federal
agencies as generic or tier 1 NEPA review.
\5\ ``Tiering'' refers to an approach where federal agencies
first consider the broad, general impacts of proposed program, plan,
policy, or large scope project--or at the early stage of a phased
proposal--and then conduct subsequent, narrower, decision focused
reviews. See 40 CFR 1502.20 and 1508.28.
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A. Purpose of This Guidance
This guidance was prepared to assist Federal agencies to improve
and modernize their use of programmatic NEPA reviews (analysis and
documentation). The term ``programmatic'' describes any broad or high-
level NEPA review; it is not limited to a NEPA review for a particular
program.\6\ Programmatic NEPA reviews assess the environmental impacts
of proposed policies, plans, programs, or projects for which subsequent
actions will be implemented either based on the PEA or PEIS, or based
on subsequent NEPA reviews tiered to the programmatic review (e.g., a
site- or project- specific document). Programmatic NEPA reviews
designed to meet NEPA responsibilities for proposed actions without a
tiered review are governed by the same regulations and guidance that
apply to non-programmatic NEPA reviews. They should be developed and
their adequacy judged as a stand-alone final NEPA review. This guidance
addresses both programmatic NEPA reviews that make decisions applicable
to subsequent tiered NEPA reviews and programmatic NEPA reviews without
any subsequent review.
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\6\ For example, programmatic NEPA reviews are used when
agencies revise forest or land and resource management plans,
establish programs to eradicate or control invasive species, develop
infrastructure with a multijurisdictional footprint, or develop
multiple similar recovery projects following a major disaster.
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The programmatic approach under NEPA has not been fully used for
its intended purpose and when used, it often has not fulfilled agency
or stakeholder expectations.\7\ On March 6, 2012, the Council on
Environmental Quality (CEQ) published guidance highlighting the
efficiencies provided for in the CEQ Regulations Implementing the
Procedural Requirements of the National Environmental Policy Act (CEQ
Regulations) \8\ and received feedback from several stakeholders that
additional guidance on programmatic and tiered NEPA reviews would
provide a valuable addition to agency practices and procedures for
providing more timely and efficient NEPA reviews.\9\
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\7\ Council on Environmental Quality, National Environmental
Policy Act Task Force Report: Modernizing NEPA Implementation (Sept.
24, 2003) (finding that reliance on programmatic NEPA documents has
resulted in public and regulatory agency concern that programmatic
NEPA documents often result in a ``shell game'' of when and where
deferred issues will be addressed, undermining agency credibility
and public trust. The report found that the public may fail to
understand: (1) The significance of the broad decisions being
analyzed; and (2) that the specific details will be provided in
subsequent site-specific documents. On the other hand, when
programmatic NEPA documents are focused, some respondents fear that
some issues and analyses will be deferred and ultimately never
addressed. The NEPA Task Force found that agencies that provide the
greatest specificity in programmatic documents have the greatest
difficulty in maintaining the viability and durability of these
documents. This difficulty associated with maintaining document
relevancy has led some agencies as well as members of the public to
conclude that preparing programmatic NEPA documents is not cost
effective. The recommendation of the Task Force was that CEQ develop
advice to agencies on the analytical requirements associated with
the different uses of programmatic NEPA reviews, to foster agreement
and consistency between agency decisions and public expectations),
available at https://ceq.hss.doe.gov/ntf/20030929memo.pdf.
\8\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the
National Environmental Policy Act (March 6, 2012), available at
https://ceq.hss.doe.gov/current_developments/docs/Improving_NEPA_Efficiencies_06Mar2012.pdf.
\9\ 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, regulation, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory language such as ``recommend,'' ``may,''
``should,'' and ``can,'' is intended to describe CEQ policies and
recommendations. The use of mandatory terminology such as ``must''
and ``required'' is intended to describe controlling requirements
under the terms of NEPA and the CEQ Regulations, but this document
does not establish legally binding requirements in and of itself.
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This guidance is designed to provide practitioners with guidance to
assist in the preparation and proper use of programmatic NEPA reviews,
and help agencies inform and meet public expectations for programmatic
reviews that will enhance the focus and utility of public review and
comment. It builds on guidance issued in 1983 that explains the use of
tiering and its place in the NEPA process.\10\
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\10\ Council on Environmental Quality, Guidance Regarding NEPA
Regulations, Memorandum for Heads of Federal Agencies (July 28,
1983), available at https://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm.
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This new guidance focuses specifically on NEPA reviews and not on
other types of programmatic analyses. CEQ recognizes that analyses
conducted outside the context of NEPA can also play an important role,
for example, in assessing existing conditions. Although these types of
analyses may be used--either by incorporation by reference or as a
starting point for developing the NEPA review--an analysis prepared by
an agency is not a NEPA programmatic review unless that agency is
making decisions on a proposed Federal action. This important
distinction was explained in previous NEPA guidance which referred to a
non-NEPA programmatic review as a joint inventory or planning study:
In geographic settings where several Federal actions are likely to
have effects on the same environmental resources it may be advisable
for the lead Federal agencies to provide historical or other
baseline information relating to the resources. This can be done
either through a programmatic NEPA analysis or can be done
separately, such as through a joint inventory or planning study. The
results can then be incorporated by reference into NEPA documents
prepared for specific Federal actions so long as the programmatic
analysis or study is reasonably available to the interested
public.\11\
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\11\ Council on Environmental Quality, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June
24, 2005), available at https://ceq.hss.doe.gov/nepa/regs/Guidance_on_CE.pdf.
B. The Nature of Programmatic NEPA Reviews
A PEA or PEIS addresses the general environmental issues and
concerns at a broad policy or program level, and can effectively frame
the scope of subsequent site- and project-specific proposed Federal
actions. A well-crafted NEPA programmatic review provides
[[Page 50581]]
the basis for broad or high-level decisions such as identifying
geographically bounded areas within which future proposed activities
can be taken or identifying broad mitigation and conservation measures
that can be applied to subsequent tiered reviews.
One advantage of preparing a programmatic NEPA review for
repetitive agency activities is that the programmatic NEPA review can
effectively provide a starting point for the analysis of cumulative and
indirect impacts. Using such an approach allows an agency to
subsequently tier to this analysis, and address more narrow, site-
specific, details. This avoids repetitive broad level analyses in
subsequent tiered NEPA reviews and provides a more comprehensive
picture of the consequences of possible actions. An agency relying on a
programmatic NEPA review must consider whether the depth of analysis
needed for a tiered action requires adding to, or building on, the
analysis provided in the programmatic NEPA document. A programmatic
NEPA review can also be an effective means to narrow the consideration
of alternatives and impact discussions in a subsequent tiered NEPA
review.
Decision-makers may also call for a programmatic NEPA review for
other reasons. For example, programmatic analyses may serve to
influence the nature of subsequent decisions, thereby providing for an
integrated and sustainable policy, planning framework, or program.
Programmatic NEPA reviews may also support policy- and planning-level
decisions when there are limitations in available information and
uncertainty regarding the timing, location, and environmental impacts
of subsequent implementing action(s). For example, in the absence of
certainty regarding the environmental consequences of future tiered
actions, agencies may be able to make broad program decisions and
establish parameters for subsequent analyses based on a programmatic
review that adequately examines the reasonably foreseeable consequences
of a proposed program, policy, plan, or suite of projects.
II. Programmatic NEPA Reviews in Council on Environmental Quality
Regulations
The concept of ``programmatic'' NEPA reviews is imbedded in the CEQ
Regulations Implementing the Procedural Requirements of NEPA (CEQ
Regulations) that address analyses of ``broad actions'' and the tiering
process.\12\
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\12\ 40 CFR parts 1500-1508.
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The CEQ Regulations state in relevant part that environmental
impact statements may be prepared, and are sometimes required, for
broad Federal actions such as the adoption of new agency programs or
regulations, and that agencies shall prepare statements on broad
actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.\13\ The
regulations also state that when preparing statements on broad actions
(including proposals by more than one agency), agencies may find it
useful to evaluate the proposal(s) in one of the following ways:
geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area;
generically, including actions that have relevant similarities, such as
common timing, impacts, alternatives, methods of implementation, media,
or subject matter; or by stage of technological development, including
Federal or Federally assisted research, development or demonstration
programs for new technologies which, if applied, could significantly
affect the quality of the human environment.\14\ CEQ interprets its
regulations as allowing for the use of a programmatic approach in
developing an EA as well as in an EIS.
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\13\ 40 CFR 1502.4(b).
\14\ 40 CFR 1502.4(c).
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CEQ interprets its regulations as allowing for the use of a
programmatic approach in developing an EA as well as in an EIS.
In cases where a policy, plan, program, or broad project analysis
identifies but does not provide sufficiently in-depth analysis for
potential future actions, then subsequent analyses are appropriate and
are referred to as ``tiered'' analyses. Tiering is one way ``to relate
broad and narrow actions and to avoid duplication and delay.'' \15\
Appendix A provides a table of key distinctions between programmatic
and the subsequent tiered NEPA reviews, Appendix B provides the CEQ
regulations and guidance relevant to programmatic reviews, and Appendix
C contains examples of successful programmatic NEPA reviews.\16\
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\15\ 40 CFR 1502.4(d). Tiering is described at 40 CFR 1502.20
and further defined at 40 CFR 1508.28.
\16\ Appendices B & C available at https://www.whitehouse.gov/administration/eop/ceq/initiatives/.
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III. When to Use a Programmatic and Tiered NEPA Review
Programmatic NEPA reviews add value and efficiency to the decision-
making process when they inform the scope of decisions and subsequent
tiered NEPA reviews. Programmatic NEPA reviews can facilitate decisions
on matters that precede site- or project-specific implementation, such
as mitigation commitments for subsequent actions, or narrowing of
future alternatives. They also provide information and analyses that
can be incorporated by reference in future NEPA reviews. Programmatic
NEPA documents may help an agency look at a large or multi-faceted
action without becoming immersed in all the details of future site or
project-specific proposals. Using programmatic and subsequent tiered
NEPA reviews effectively will allow for a focused review at the proper
level.
A programmatic NEPA review may be appropriate when the action being
considered falls into one of the four major categories of actions to
which NEPA can apply:
Adopting Official Policy. Decision to adopt in a formal
document an official policy that would result in or substantially alter
agency programs. The programmatic analysis for such a decision should
include a road map for future agency actions with defined objectives,
priorities, rules, or mechanisms to implement objectives. Programmatic
examples include:
[cir] Rulemaking at National- or regional-level;
[cir] Adoption of an agency-wide policy; or
[cir] Redesign of an existing program.
Adopting Formal Plans. Decision to adopt formal plans,
such as documents that guide or prescribe alternative uses of Federal
resources, upon which future agency actions will be based. For example,
setting priorities, options, and measures for future resource
allocation according to resource suitability and availability. Specific
programmatic examples include:
[cir] Strategic planning linked to agency resource allocation; or
[cir] Adoption of an agency plan for a group of related projects.
Adopting Agency Programs. Decision to proceed with a group
of concerted actions to implement a specific policy or plan; e.g., an
organized agenda with defined objectives to be achieved during
implementation of specified activities. Programmatic examples include:
[cir] A new agency mission or initiative; or
[cir] Proposals to substantially redesign existing programs.
Approving Multiple Actions. Decision to proceed with
multiple projects that are temporally or spatially
[[Page 50582]]
connected and that will have a series of associated concurrent or
subsequent decisions. Programmatic examples include:
[cir] Several similar actions or projects in a region or nationwide
(e.g., a large scale corridor project); or
[cir] A suite of ongoing, proposed or reasonably foreseeable
actions that share a common geography or timing, such as multiple
activities within a defined boundary (i.e., Federal land or facility).
Agencies should exercise their judgment and discretion when
determining whether to prepare a PEA or PEIS.\17\ CEQ recommends
agencies give particular consideration to preparing a PEA or PEIS when:
(1) Initiating or revising a national or regional rulemaking, policy,
or program; (2) adopting a plan for managing a range of resources; or
(3) making decisions on common elements or aspects of a series or suite
of closely related projects.
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\17\ National Wildlife Federation v. Appalachian Regional
Commission, 677 F.2d 883, 888 (D.C. Cir. 1981).
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A programmatic NEPA review may not be a cost effective effort for
an agency if the effort required to perform the review is substantially
greater than the time and effort saved in analyzing subsequent
proposals or if the lifespan of the programmatic NEPA document is
limited. Agencies usually benefit by asking two questions when
determining whether to prepare a programmatic NEPA review: (1) Could
the PEA or PEIS be sufficiently forward looking to contribute to the
agency's basic planning of an overall program?; and (2) does the PEA or
PEIS provide the agency the opportunity to avoid `segmenting' the
overall program from subsequent individual actions and thereby avoid
unreasonably constricting the scope of environmental regulation? \18\
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\18\ Piedmont Environmental Council v. F.E.R.C., 558 F.3d 304,
316 (4th Cir. 2009) (quoting Nat'l Wildlife Fed'n v. Appalachian
Reg'l Comm'n, 677 F.2d 883, 888-89 (D.C. Cir. 1981)) (agency can do
all individual EISs but not if that is an attempt to segment the
program and thereby limit regulation; if so, a programmatic should
have been done).
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IV. Practical Considerations for Programmatic Reviews and Documents
This section provides practical guidance to help agencies implement
a successful programmatic approach. The following points will be
addressed:
Answering the fundamental question of what decision(s)
does the agency need to make;
Answering the question of what actions would the agency
subsequently want to take based on the programmatic NEPA review;
Determining the purpose and need of the programmatic
proposal to be analyzed and decided on and its relationship to
subsequent tiered level proposals and decisions;
Defining a practical scope for the programmatic review
that is appropriate to the particular type of broad action being
analyzed;
Gathering and analyzing data for broadly scoped actions
that potentially affect large geographic areas;
Coordinating among the multiple overlapping jurisdictions
and agencies that may have a role in assessing or determining whether
and how a subsequent action may proceed;
Communicating the scope, content, and purpose of a
programmatic NEPA analysis in a way the parties involved in the process
and the public can understand;
Communicating the opportunities for public engagement in
the development of the tiered NEPA reviews; and
Maintaining the relevancy of programmatic NEPA documents
for subsequent tiered analyses.
A. Determining the Utility and Scope of the Programmatic NEPA Review
Agencies should carefully consider, as early as practicable, the
benefits of making the initial broad decisions and the amount of effort
required to perform the programmatic review to ensure that using the
programmatic approach facilitates decision-making and merits the
investment of time and effort. To determine the utility of the PEA or
PEIS, and the scope of analysis, an agency may find it helpful to
consider:
What Federal decisions need to be made now and in the
future regarding the broad Federal action being proposed?
What are the meaningful decision points \19\ from proposal
through implementation, and where are the most effective points in that
continuum to address the potential for effects?
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\19\ 40 CFR 1502.4(b) (``[a]gencies shall prepare statements on
broad actions so that they are relevant to policy and are timed to
coincide with meaningful points in agency planning and
decisionmaking'').
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What are the appropriate geographic limits and time frames
for this programmatic review?
Is it necessary to analyze the particular effects of a
proposed action at a broader scale to facilitate analysis and/or
decision-making at a more refined (i.e., tiered) level, and is a
programmatic NEPA review the best way to do this? For example, a
programmatic NEPA review may serve as an efficient mechanism to
describe Federal agency efforts to adopt sustainable practices for
energy efficiency, reduce or avoid greenhouse gas emissions, reduce
petroleum product use, and increase the use of renewable energy
including bioenergy, as well as other sustainability practices. The
definition of ``proposal'' for the purposes of NEPA review should be
considered when answering this question.\20\
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\20\ 40 CFR 1508.23 The regulation states that a ``proposal''
exists at that stage in the development of an action when an agency
subject to the Act has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated. It goes on to explain
that a proposal may exist in fact as well as by agency declaration
that one exists.
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How long will the programmatic review continue to provide
a relevant framework for tiering subsequent actions and what factors
may result in the need to supplement or refresh the review?
1. Purpose and Need
The purpose and need statement is key to developing the NEPA
review, as it establishes the scope of the analyses, range of
reasonable alternatives, and frames the decision to be made. The
purpose and need for a programmatic review will differ from the purpose
and need for a project- or site-specific EA or EIS. The purpose and
need for a PEA or a PEIS needs to be broad enough so as to avoid
eliminating reasonable alternatives for a tiered EA or EIS and focused
enough for the agency to conduct a rational analysis of the impacts and
allow for the public to provide meaningful comment on the programmatic
action. The purpose and need sets the tone for the scoping process and
the course for conducting the NEPA review.
2. Scope of Analysis
The scope consists of the range of actions, the alternatives, and
the associated impacts to be considered in a NEPA review.\21\ A
programmatic NEPA review, like project- or site-specific NEPA reviews,
must address the potentially significant environmental impacts of a
proposed Federal action. Consequently, the nature of the pending
decision drives the scope of the environmental analyses and
documentation. The planning process for the proposed action and the
development of a programmatic NEPA review should start as early as
practicable. By starting the planning process early, there should be
sufficient time for establishing the reasonable scope of actions,
alternatives, and impacts in the programmatic review,
[[Page 50583]]
and identifying the decisions the programmatic review will support so
that the level of analysis is clear from the start.
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\21\ 40 CFR 1508.25.
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3. The Proposed Action
In addition to unconnected single actions, there are three types of
actions set out in 40 CFR 1508.25(a) that may be analyzed in NEPA
reviews, including those that are programmatic: connected actions,
cumulative actions, and similar actions.
Connected actions are those that enable other actions that require
a Federal action, or where the enabled action cannot or will not
proceed unless the underlying action is taken; or are interdependent
parts of a larger action and depend on the larger action for
justification.\22\ Projects that have independent utility are not
connected actions.\23\
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\22\ 40 CFR 1508.25(a)(1).
\23\ 40 CFR 1508.25(a)(1)(iii).
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Example: An agency could analyze a proposed pesticide
aerial application program for a large metropolitan area in the same
NEPA document with related actions such as the following: equipment
purchase and location; pesticide purchase, storage methods and
location; and loading locations that will be needed. These are examples
of connected actions that are interdependent parts of the larger
proposed pesticide aerial application program.
Cumulative actions are those with impacts which, when viewed with
other proposed actions, have the potential for cumulatively significant
impacts and should therefore be discussed collectively in the same NEPA
review.\24\
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\24\ 40 CFR 1508.25(a)(2).
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Example: A proposed pesticide use program can be analyzed
in conjunction with a proposed pest eradication program as cumulative
actions because they have the potential to affect the same resources.
Note that cumulative effects would have to be considered when
conducting the NEPA reviews for each of the proposals, whether in
separate or combined NEPA reviews.
Similar actions are those which, when viewed with other reasonably
foreseeable or proposed agency actions, have similarities such as
timing, impacts, alternatives, or methods of implementation.\25\ A
programmatic NEPA review provides a platform for evaluating their
environmental consequences together.
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\25\ 40 CFR 1508.25(a)(3) and 1502.4(c).
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Example: Several energy development programs proposed in a
region of the country are similar actions if they have similar proposed
methods of implementation and best practice mitigation measures that
can be analyzed in the same document.
Broad Federal actions may be implemented over large geographic
areas and/or a long time frame. Programmatic NEPA documents must
include connected and cumulative actions, and the responsible official
should consider whether it is helpful to include a series or suite of
similar actions.\26\
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\26\ 40 CFR 1508.25(a).
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Agencies may prepare a single NEPA document to support both
programmatic and project-specific proposals. Such an approach may be
appropriate when an agency plans to make a broad program decision, as
well as decisions to implement one or more specific projects under the
program. For example, the programmatic approach may address both the
broad impacts of the proposed broad Federal action and provide
sufficiently detailed environmental analyses for specific decisions,
such as determining the locations and designs of one or more proposals
to implement the broad Federal action. The challenge for agencies is to
clearly communicate why some environmental aspects are analyzed in
greater detail--such as the project- or site-specific effects--than
others--such as the programmatic effects. It is essential to clearly
state the decisions the agency proposes to make based directly on the
PEA or PEIS and distinguish the analysis of impacts and alternatives of
the broad programmatic proposals from the project- or site-specific
proposals.
4. The Alternatives
Alternatives in a programmatic NEPA review are expected to reflect
the level of the broad Federal action being proposed and would include
the standard NEPA requirements for alternatives.\27\ In situations
where there is an existing program, plan or policy, CEQ expects that
the no-action alternative would typically be the continuation of the
present course of action until a new program, plan or policy is
developed.\28\
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\27\ 40 CFR 1508.25(b) and 1508.9(3)(b).
\28\ 46 FR 18026 (addressing in question and answer three what
is included in a ``no action'' alternative).
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When preparing the programmatic NEPA review for a policy, plan,
program, or project, alternatives can be considered at the programmatic
level to support focusing future decisions and eliminating certain
alternatives from detailed study in subsequent NEPA reviews. By clearly
articulating the nature of subsequent tiered decisions, agencies can
craft the alternatives for a programmatic review to focus the scope and
development of alternatives for the subsequent tiered NEPA documents.
By articulating the reasoned choice between alternatives, with a
discussion of why considered alternatives were not chosen, the range of
alternatives in tiered NEPA reviews can be appropriately narrowed.
Including a brief written discussion of the reasons alternatives were
eliminated \29\ should provide the justification for narrowing the
range of reasonable alternatives to be considered in those tiered NEPA
documents.
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\29\ 40 CFR 1502.14(a).
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5. The Impacts
All NEPA reviews are concerned with three types of reasonably
foreseeable impacts: direct, indirect, and cumulative.\30\ The contrast
between a programmatic and a project- or site-specific NEPA review is
most strongly reflected in how these environmental impacts are
analyzed. Because impacts in a programmatic NEPA review typically
concern environmental effects over a large geographic and/or time
horizon, the depth and detail in programmatic analyses will reflect the
major broad and general impacts that might result from making broad
programmatic decisions. Agencies should be clear about the context of
the decision to be made and how it relates to the intensity of any
potential impacts.
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\30\ 40 CFR 1508.7 and 1508.8.
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As noted previously, agencies may propose decisions regarding
standard mitigation protocols and/or operating procedures in a
programmatic NEPA review and thereby provide a framework and scope for
the subsequent tiered analysis of environmental impacts. For example,
proposals for long range energy or transportation infrastructure
programs are potentially good candidates for PEAs and PEISs that
include an assessment of how the programs will contribute to or reduce
water quantity and quality. Discussions of water quantity and quality
could then be incorporated by reference in tiered NEPA reviews. By
identifying potential program impacts early, particularly cumulative
and indirect impacts, programmatic NEPA reviews provide opportunities
to modify program components and avoid or mitigate adverse impacts when
developing subsequent proposals.
[[Page 50584]]
B. Collaboration, Public Engagement, and Coordination With Other
Environmental Reviews
1. Importance of Collaboration and Cooperation
The types of actions that agencies analyze in programmatic reviews
may feature some jurisdictional complexity. Impacts on state, tribal
and private lands, and potentially overlapping authorities between
agencies and governments with different missions and authorities should
be considered in programmatic reviews that address resources or actions
across jurisdictional boundaries. Collaboration and cooperation among
Federal agencies, tribes, and state and local governments is especially
critical for successful completion of meaningful programmatic NEPA
reviews. Scoping early in the process provides agency decision-makers
with access to other agencies' and governments' expertise and can help
agencies identify broad scale issues, develop alternatives for
analysis, identify the appropriate temporal and spatial parameters, and
determine the appropriate depth of analysis or level of detail for the
NEPA review.
2. Public Involvement
Engaging the public is particularly important when developing
programmatic NEPA reviews in order to ensure agency objectives are
understood and to clarify how a programmatic review relates to
subsequent tiered reviews. Effective public engagement also will help
manage expectations with regard to the purpose and need, the scope of
the programmatic NEPA review, and the purpose and need and scope of
subsequent site- and project-specific NEPA reviews. Outreach to
potentially interested stakeholders should begin as early as possible--
even in advance of formal scoping periods--to afford the public a
meaningful opportunity to comment on and shape the NEPA review.
When the public has a chance to see the big picture early it can
provide fresh perspectives and new ideas before determinations are made
that will shape the programmatic review as well as subsequent tiered
proposals. Early outreach also provides an opportunity to develop trust
and good working relationships that may extend throughout the
programmatic and subsequent NEPA reviews and continue during the
implementation of the proposed action.\31\ An agency can encourage
early public participation by clearly explaining to the public not only
what the proposed programmatic evaluation is meant to accomplish, but
also how it relates to future actions, and why the public should get
involved at the programmatic stage and not wait for any tiered reviews.
Clarity of approach is essential to avoid the impression that a
programmatic NEPA review creates a situation whereby the public is too
early to raise issues in the broader programmatic analysis and then too
late to raise them in any subsequent tiered analyses.
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\31\ 40 CFR 1501.7; see also Council on Environmental Quality,
Collaboration in NEPA--A Handbook for NEPA Practitioners (October
2007), available at https://ceq.hss.doe.gov/nepa/nepapubs/Collaboration_in_NEPA_Oct2007.pdf.
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Stakeholders for a programmatic review may span multiple states and
large areas. Consequently, public engagement should be well thought
through to include all the potentially interested Federal and state
agencies, tribes, local governments, private organizations, and
individual citizens.\32\
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\32\ For example, a good way to reach out to such a large and
diverse public is through non-governmental organizations and
citizen's groups. These organizations frequently know what their
constituents care about and they may have effective means for
communicating with those constituents. Agencies are also encouraged
to use conference calls, web meetings and teleconferences to
facilitate easy participation by the interested public.
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3. Coordination With Other Environmental Reviews
The purpose and need statement and the proposed action for the
programmatic NEPA review are critical for determining the compliance
requirements under other applicable laws and regulations, such as the
Endangered Species Act, National Historic Preservation Act, and Clean
Water Act. They are also critical for determining when these other
reviews must be completed and for developing a strategy to address all
environmental review and consultation requirements in a coordinated
manner. Coordinating compliance with other environmental reviews
supports a broad discussion, facilitates a comprehensive project
management schedule, provides opportunities to meet data, public
engagement, and documentation requirements more efficiently, and
generally promotes greater transparency in Federal decision-making.
Programmatic NEPA analysis and subsequent tiered NEPA analysis
support a phased decision-making process that allows certain statutory
and regulatory compliance to be achieved at the programmatic level. The
nature of the decision at each phase and the extent to which it may
constrain the subsequent consideration of alternatives will help
determine an agency's overall environmental compliance requirements.
NEPA requires a full evaluation of all specific impacts when the agency
proposes to make an irreversible and irretrievable commitment of the
availability of resources to a project. This usually occurs at the
site-specific level.\33\
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\33\ N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886 (9th Cir.
1992).
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Provided the PEA or PEIS has sufficient specific data and
information, it may satisfy other relevant legal requirements for site-
specific future actions, even when there is no irreversible or
irretrievable commitment of resources at the programmatic level. The
determination of whether a particular decision in a phased or
incremental decision-making process represents this level of commitment
begins with a well formulated description of the proposed action.\34\
Agencies should be aware that preparing a programmatic NEPA review is
not a substitute for compliance with other environmental laws.
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\34\ Friends of Yosemite Valley v. Norton, 348 F. 3d, 789, 801
(9th Cir. 2003).
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For example, approval of land use plans that establish future
management goals and objectives for resource management, and the
measures to achieve those goals and objectives, do not necessarily
require completion of the Section 106 process under the National
Historic Preservation Act. In some cases, an agreement with
stakeholders, such as a programmatic agreement pursuant to sec. 106 of
the National Historic Preservation Act, demonstrates an agency's
compliance requirements for phased decisions being analyzed through a
programmatic NEPA review. For instance, where a Federal agency's broad
decision will narrow the opportunities for adverse effects in future
specific proposals, then the agency may initiate the sec. 106 process
as part of the programmatic review. This will allow the agency to
complete that process by establishing steps for meeting its
responsibility as it implements the broad decision and prior to
subsequent project- and site-specific proposals.
Agencies should clearly and concisely articulate their intentions
to defer particular environmental review and consultation requirements
for consideration until a subsequent project- or site-specific proposal
is developed. When deferring these requirements, agencies may still
need to analyze and address related statutory requirements to some
extent in the programmatic document. For example, if the subsequent
actions tiered to the
[[Page 50585]]
programmatic document will require authorization under sec. 404 of the
Clean Water Act prior to construction, agencies should include, after
consultation with the U.S. Army Corps of Engineers, a discussion of the
range of alternatives that are necessary to demonstrate compliance with
the sec. 404(b)(1) Guidelines, and whether there are any practicable
alternatives that have less adverse impact on the aquatic ecosystem--
and do not have other significant environmental effects--will be made
at the project-specific or site-specific level.
C. Preparing the Documents
1. Programmatic Environmental Assessment or Programmatic Environmental
Impact Statement?
Programmatic approaches are usually associated with EISs and tiered
documents more typically with proposal-specific EAs. Tiering an EA from
a PEIS is appropriate when there are no new significant affects or
considerations and the programmatic NEPA review addresses those
measures that tiered proposals can rely on to address and reduce the
significance of the site- or project-specific impacts.
An agency may prepare a PEA to determine whether an EIS is required
or when considering a proposal that does not have significant impacts
at the programmatic level. Following a PEA that results in a finding of
no significant impact (FONSI), an agency may tier to an EA that results
in a finding of no significant impact,\35\ or may tier to an EIS when a
subsequent site- or project- specific proposal has the potential for a
significant impact on the environment.
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\35\ Northern Plains Resource Council v. Lujan, 874 F.2d 661,
665-66 (9th Cir. 1989).
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Whether the agency prepares a PEA or a PEIS, that programmatic
review should explain how the agency intends to use it to complete
future proposal-specific NEPA reviews. Reasonably available information
that should be provided both during scoping and in the PEA or PEIS
includes the expected timing of the tiered review(s) as well as the
issues, and depth of analysis, it is expected to consider. At the
project- or site-specific level, it is necessary to consider the
potential impacts that have not been analyzed and considered in the
previous programmatic review to which it tiers.
2. Level of Detail in Programmatic NEPA Documents
A PEA or PEIS addresses the broad environmental consequences
relevant at the programmatic level. A subsequent tiered EA or EIS will
address more particularized considerations, but can benefit from the
programmatic by summarizing and incorporating by reference parts of
it.\36\ For example, with the Forest Service's programmatic Gypsy Moth
Supplemental EIS, the PEIS analyzed the human health and ecological
risk assessments for each pesticide approved for use in the Gypsy Moth
Eradication Program thereby eliminating the need for such analysis when
individual spraying projects are proposed. The PEIS analyzed and
disclosed these risks, and deferred to site or project level analyses
the specific application of these risk data to how the insecticides
would be used in a given project (e.g., dose rates, number of
applications, presence of ``sensitive populations'') and other specific
issues and concerns raised during scoping.
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\36\ Nevada v. Dep't of Energy, 372 U.S. App. DC 432 (D.C. Cir.
2006).
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The PEA or PEIS must provide sufficient detail to foster informed
decision-making that reflects broad environmental consequences from a
wide-ranging federal program.\37\ Site- or project-specific impacts
need not be fully evaluated at the programmatic level when the decision
to act on a site development or its equivalent is yet to be made.\38\
Alternatives need only be specific enough to make a reasoned choice
between programmatic directions. The alternatives need not consider
every specific aspect of a proposal. For example, a programmatic
analysis of a plan would not require consideration of detailed
alternatives with respect to each aspect of the plan--otherwise a
programmatic analysis would be impossible to prepare and would become a
compilation of a vast series of site specific analyses.\39\
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\37\ Found. On Econ. Trends. v. Heckler, 756 F.2d 143, 159 (D.C.
Cir. 1985).
\38\ Citizens for Better Forestry v. U.S. Dep't of Agriculture,
481 F. Supp. 2d 1059, 1086, (D. Cal. 2007).
\39\ Greenpeace v. National Marine Fisheries Service, 55 F.
Supp. 2d 1248, 1276 (D. Wash. 1999).
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The following considerations may be helpful to determine the scale
and scope of impacts to be addressed in a programmatic NEPA review:
First, what are the appropriate scales of the affected
environment to be analyzed (e.g., watershed, basin, etc.)?
Second, what environmental impacts are of concern at this
scale?
Third, what information can be garnered about
environmental impact criteria (thresholds) to assist in describing when
those impacts are best addressed in detail?
Determining the level of detail appropriate to a programmatic
analysis requires weighing several factors, including the extent of the
interrelationship among proposed actions, the scale and scope of any
subsequent decisions, as well as practical considerations of
feasibility. Resolving these issues will require the expertise of the
agencies responsible for the proposed action informed by the agencies
responsible for the potentially impacted resources.\40\
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\40\ Texas Committee on Natural Resources v. Bergland, 573 F. 2d
201 (5th Cir. 1978).
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3. Depth of Impact Analysis in Programmatic NEPA Documents
The agency is obligated to conduct a meaningful impact analysis in
accordance with NEPA, and that analysis should be commensurate with the
nature and extent of potential impacts of the decision being made. A
programmatic NEPA review should contain sufficient discussion of the
relevant issues and opposing viewpoints to enable the decision-maker to
take a ``hard look'' at the environmental effects and make a reasoned
choice among alternatives.\41\ There should be enough detail to enable
those who did not have a part in its compilation to understand and
meaningfully consider the factors involved.\42\
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\41\ Natural Resources Defense Council v. Morton, 458 F.2d 827,
838 (D.C. Cir. 1972).
\42\ Baltimore Gas and Electric Co v. NRDC, 462 U.S. 87 (1983).
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A broad (e.g., regional) description may suffice for characterizing
the affected environment in most programmatic NEPA reviews, so long as
potentially impacted resources are meaningfully identified and
evaluated. Impacts can often be discussed in a broad geographic and
temporal context with particular emphasis on cumulative impacts. Those
impacts can often be shown in a meaningful way by displaying a range of
potential effects. The scope and range of impacts may also be more
qualitative in nature than those found in project- or site-specific
NEPA reviews.
It may be more difficult for an agency to analyze the environmental
impacts in depth when there is no clear indication--no site- or
project-specific proposal pending--for the level of activity that may
follow a programmatic decision.\43\ A programmatic NEPA review should
carefully consider the scope of both the programmatic and the
subsequent tiered NEPA review. CEQ's 1981 scoping guidance addressed
this issue and the need to be clear about the type of programmatic NEPA
review.
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\43\ 40 CFR 1508.23.
[I]f a proposed program is under review, it is possible that
site specific actions are not yet proposed. In such a case, these
actions
[[Page 50586]]
are not addressed in the EIS on the program, but are reserved for a
later tier of analysis.\44\
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\44\ Council on Environmental Quality, Memorandum for General
Counsels, NEPA Liaisons, and Participants in Scoping (April 30,
1981), available at https://ceq.hss.doe.gov/nepa/regs/scope/scoping.htm.
Thus, the deferred analysis should be identified and the intended
use of tiering made clear at the outset of scoping, and articulated in
the programmatic review. Informing participants and the public of the
expected timing of the tiered review(s), as well as the issues and
depth of analysis, allows them to concentrate on the issues at hand,
rather than on those that will be addressed later. Courts have affirmed
NEPA's requirement that Federal agencies document the environmental
impacts of proposed broad actions, such as programs, recognizing the
difficulty in predicting the level of activity that will occur and that
it may not be possible to analyze thoroughly the environmental effects
of, and the resource commitments involved in, such a broad proposed
activity.\45\
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\45\ Kleppe v. Sierra Club, 427 U.S. 390 (1976).
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For example, in the PEIS for the Container Terminal Development
Plan prepared by the Port of Seattle Marine Planning & Development
Department, the port determined that it was impossible to know the
precise demand for container service in the future, and therefore it
was impossible to predict the precise location, type and timing of
specific facilities and their environmental impacts. Recognizing the
uncertainties involved, the PEIS evaluated potential environmental
impacts and opportunities comprehensively by focusing on a bounded
range of potential activities and their impacts. The port's Container
Plan projected a low and high range for container service demand and a
range of new or improved facilities. The EIS evaluated strategies for
meeting low and high range demand and the preferred alternative based
on the plan, providing a flexible market-driven approach in recognition
of the dynamic nature of the shipping industry and supply of regional
container facilities.\46\
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\46\ Final Environmental Impact Statement, Container Terminal
Development Plan, Port of Seattle Marine Planning & Development
Department 1-17 (October 1991) (on file with the Council on
Environmental Quality).
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D. Mitigation and Monitoring
Programmatic NEPA reviews provide an opportunity for agencies to
incorporate comprehensive mitigation planning and monitoring strategies
into the Federal policymaking process at a broad or strategic, rather
than specific, or site-by-site, level. These analyses can promote
sustainability and allow Federal agencies to advance the nation's
environmental policy as articulated in sec. 101 of NEPA.\47\
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\47\ 42 U.S.C. 4331. See also E.O. 13423, 72 FR 3919 (2007),
available at ceq.eh.doe.gov/nepa/regs/Executive_Order_13423.htm.
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By identifying potential adverse impacts early during the broad
programmatic planning, programmatic NEPA reviews provide a unique
opportunity to modify aspects of the proposal and subsequent tiered
proposals to avoid or otherwise mitigate those impacts. A thoughtful
and broad-based approach to planning for future development can include
best management practices, standard operating procedures and
comprehensive mitigation measures that address impacts on a broad
programmatic scale (e.g., program-, region-, or nation-wide). These can
expedite the preparation of subsequent project- or site-specific
proposals by establishing siting, design, operational, or other
relevant implementation criteria, requirements, and protocols. The
subsequent tiered NEPA review would then include those measures to
address potentially significant impacts and focus on the impacts and
mitigation alternatives available at the project- or site-specific
level that were not considered in the PEA or PEIS.
For example, a Forest Service and Bureau of Land Management PEIS
for coal bed methane development on Federal lands in San Juan National
Forest established siting and engineering techniques and best
management practices to reduce the effects of coal bed methane
development on surface water quality, quantity, and use; established a
suite of mitigation measures for when pipelines, roads, or power lines
crossed a stream, wetland, or riparian area; established the
development of site-specific mitigation plans; and required monitoring
plans for individual wells that would disturb wetlands or riparian
areas.\48\ These types of programmatic decisions provide valuable
information for project proponents (e.g., applicants for Federal
licenses or rights-of-way) as they design proposals and implementation
activities and give the public insight into the kinds of protections
that would be afforded in designing and permitting such facilities.
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\48\ San Juan Citizens Alliance v. Stiles, 654 F.3d 1038 (10th
Cir. 2011).
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Programmatic NEPA reviews also afford agencies the opportunity to
develop monitoring programs to address impacts on a broad scale. This
provides agencies the opportunity to ensure that mitigation commitments
on the programmatic level are actually being implemented. Further, it
allows agencies to determine whether the mitigation measures achieved
the environmental outcomes they were designed to accomplish.\49\
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\49\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies: Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of Mitigated Findings
of No Significant Impact (January 14, 2011), available at https://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
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Finally, monitoring is critical when agencies establish adaptive
management strategies in a programmatic NEPA document to increase their
flexibility in developing and analyzing subsequent resource management
proposals. Identifying triggers for changing the course of
implementation and the associated effects and analyzing those impacts
at the programmatic level, can allow the agency to change the course of
implementation without the need for developing supplemental NEPA
reviews and the associated documentation. Ranges of results inform the
public and the decision-maker about what parameters are acceptable for
continued management under the proposed adaptive management regime and
monitoring provides assurance that the environmental impacts have been
adequately considered in the programmatic review.
E. Handling New Proposals While Preparing a Programmatic NEPA Review
Agencies are sometimes reluctant to conduct programmatic NEPA
reviews because of the risk of delaying ongoing and newly proposed
actions. The CEQ Regulations enable interim actions to proceed provided
certain criteria are met.\50\ Typically, proposed actions of relatively
limited scope or scale that would have local utility may be taken as an
interim action before completing the programmatic analysis.
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\50\ 40 CFR 1506.1.
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The CEQ Regulations address interim action criteria for site- or
project-specific EAs or EISs when required PEAs and PEISs are not yet
completed.\51\ Although the CEQ Regulations address criteria for
interim actions specifically in the context of PEISs, in those cases
where part of a proposed action needs to proceed while a PEA is being
prepared, agencies should use the criteria in the CEQ Regulations. The
CEQ Regulations recognize and provide for situations where the
programmatic review is not available when the
[[Page 50587]]
program is at an investment stage or there is a commitment to
implementation that will limit future alternatives.\52\
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\51\ 40 CFR 1506.1(a) and (c).
\52\ 40 CFR 1502.4(c)(3).
The CEQ Regulations state, in relevant part that while work on a
required program environmental impact statement is in progress and
the action is not covered by an existing program statement, agencies
shall not undertake in the interim any major Federal action covered
by the program which may significantly affect the quality of the
human environment unless such action: Is justified independently of
the program; is itself accompanied by an adequate environmental
impact statement; and will not prejudice the ultimate decision on
the program. Finally, the regulations state that interim action
prejudices the ultimate decision on the program when it tends to
determine subsequent development or limit alternatives.\53\
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\53\ 40 CFR 1506.1(c).
Under the first criterion regarding independent justification,
agencies may take an interim action that the agency determines could be
undertaken irrespective of whether or how the program goes forward,
assuming the other two criteria are met. For example, in cases where an
agency is obligated by law to carry out a proposed interim action, the
agency should be able to demonstrate that the action has independent
utility.
The second criterion makes it clear that an EIS must be prepared
for a proposed interim action that has the potential for significant
environmental impacts. Although completion of a PEIS first may be more
efficient than preparing an adequate EIS for a proposed interim action,
the agency could complete an adequate EIS for the interim action. In
cases that don't involve significant impacts, an EA would be sufficient
to provide adequate NEPA support to meet this second criterion.
Under the third criterion, agencies may take an interim action when
they determine that the proposed interim action would not jeopardize
the objective consideration of reasonable alternatives. Agencies should
take care to distinguish interim actions from ongoing actions. An
agency does not need to suspend all operations because it has elected
to prepare a programmatic NEPA document. For example, in the case of an
area-wide or site-wide PEIS considering a new proposed operations plan,
ongoing operations within the area or site may continue and such
ongoing operations would be considered under the no action alternative
in the PEIS.
F. The Decision Document
The decision is documented in a Record of Decision (ROD) following
preparation of a PEIS or a decision may be based on a FONSI following
preparation of a PEA. The decision document should clearly explain the
decision and indicate whether tiered analyses will follow. For example,
the agency should articulate its intentions with regard to future
decisions, describe how the agency will use the programmatic NEPA
document as a basis for tiering future NEPA reviews, and indicate when
any deferred issues will be addressed.
The programmatic decision document following a PEA or a PEIS should
provide the information required in a ROD. It should include a
description of the alternatives considered, the environmentally
preferable alternative, economic and technical considerations, agency
statutory missions, essential considerations of national policy, and
all practicable means to avoid or minimize environmental harm from the
alternative selected that were adopted or, if not, why not. A
monitoring and enforcement program should also be adopted and
summarized for any mitigation where that is applicable.\54\
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\54\ 40 CFR 1505.2(c).
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V. Subsequent Proposal-Specific NEPA Reviews
A. Deferred Issues
Certain issues may not be addressed in a PEA or PEIS, but rather
are discussed fully in subsequent tiered NEPA analysis. These deferred
issues can include issues that will be addressed in additional tribal
consultations or further National Historic Preservation Act Section 106
consultation, Endangered Species Act Section 7 consultation, or other
determinations and consultations. To provide clarity to the public and
the decision-maker, programmatic NEPA reviews should make clear when
the analysis of potential environmental impacts will be deferred. When
preparing a PEA, it is acceptable for an agency to limit its analysis
to those foreseeable effects resulting from the programmatic decision
at hand. The programmatic document should clearly explain that, while
there may be other effects, they do not affect the programmatic
decision and full review of these issues is being deferred. In this
case agencies should logically explain why there is no effect on the
programmatic decision, and also include sufficient information to
explain where and when deferred issues raised by the public and/or
regulatory agencies will be addressed.
The scoping process and subsequent public involvement provide an
opportunity to clarify the triggers for determining when subsequent
reviews and opportunities for review and comment will take place.\55\
The programmatic document should also, whenever practicable, explain
how and when the interested parties will be notified of any subsequent
reviews.
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\55\ See 40 CFR 1501.7 (scoping), sec. 1501.4 (public
involvement in EAs), and sec. 1506.6 (public involvement).
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B. Tiering NEPA Reviews
One of the main advantages of a programmatic NEPA review is the
ability to tier subsequent reviews, such as site- or proposal-specific
reviews.\56\ Tiering has the advantage of not repeating information
that has already been considered at the programmatic level so as to
focus and expedite the preparation of the tiered NEPA review(s). When a
PEA or PEIS has been prepared and an action is one anticipated in,
consistent with, and sufficiently explored within the programmatic NEPA
review, the agency need only summarize the issues discussed in the
broader statement and incorporate discussion from the broader statement
by reference and concentrate on the issues specific to the subsequent
tiered proposal.\57\
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\56\ 40 CFR 1502.20.
\57\ 40 CFR 1502.20.
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There are times when an analysis at one level is sufficient. For
example, when the programmatic review has taken the required ``hard
look'' at the potential environmental impacts, an agency can rely upon
the analysis provided in the PEA or PEIS.\58\ On the other hand, an
agency may determine that detailed analysis should be deferred to the
tiered analysis. The programmatic review must be clear when issues are
being deferred, and any subsequent tiered documents will need to review
briefly what level of analysis has been considered and whether it is
still contemporary.
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\58\ Natural Resources Defense Council v. Morton, 458 F.2d 827,
838 (D.C. Cir. 1972).
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While CEQ Regulations specifically authorize an agency to tier
other NEPA reviews to an EIS, there is no barrier to tiering an EIS to
an EA prepared in accordance with NEPA, the CEQ Regulations, and agency
NEPA implementing procedures, so long as a sufficient explanation for
such an approach is proffered. A programmatic NEPA review may defer
some decisions, and make use of tiering and incorporation by reference,
and still be
[[Page 50588]]
considered a ``hard look.'' Cases that address ``improper tiering''
involve situations where an agency attempts to tier to a non-NEPA
document.\59\
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\59\ Kern v. BLM, 284 F.3d 1062 (9th Cir. 2002), the Court found
that, ``tiering to a document that has not itself been subject to
NEPA review is not permitted, for it circumvents the purpose of
NEPA.'' In Northcoast Environmental Center v. Glickman, the Court
found that, ``[a]lthough CEQ procedures allow agencies to
incorporate by reference certain materials to cut down on the bulk
of an EIS, they cannot `tier' their site-specific EISs to the
broader POC program where the program itself has not been subject to
NEPA procedures.'' Courts have also held that agencies can't
properly tier when agencies tier to an outdated PEIS (League of
Wilderness Defenders v. Marquis-Brong, 259 F. Supp. 2d 115, 1122-23
(D. Or. 2003), or an inadequate or flawed PEIS (Muckleshoot Indian
Tribe v. U.S. Forest Serv., 177 F.3d 800, 811 (9th Cir. 1999)).
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Confusion over what level of NEPA analysis is required for tiered
proposals may occur when a programmatic EIS is complete and the site-
specific project will have a significant impact as indicated in the
programmatic document. When this occurs, the appropriate question is
not if there is a significant impact from the proposed action, but if
there is a new significant impact that was not already considered and
addressed in the programmatic review. If there are no new significant
impacts, an EA may be appropriate instead of an EIS so long as the
aspects of the proposed action that involve significant effects have
not changed since the PEIS, and the agency presents its reasons for
determining that the effects and potential mitigation measures were
adequately considered in the PEIS. Consequently, as an agency
determines the appropriate scope for a PEIS, it should consider the
potential for significant site- or project-specific impacts and the
cost/benefit of addressing them programmatically.
C. New Information and Supplementing Documents
The CEQ Regulations provide a procedural framework for keeping
environmental analyses current. They require agencies to prepare
supplements upon determining there is significant new information of
relevance to the proposed action or its impacts.\60\ The possibility of
new information arising after an EA or EIS is completed exists
regardless of whether that NEPA review is a programmatic review.
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\60\ See 40 CFR 1505.3 (monitoring), 1502.9 (supplementation).
See also Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, (D.
Wash. 1992) (``[a] federal agency has a continuing duty to gather
and evaluate new information relevant to the environmental impact of
its actions, even after release of an EIS'').
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When new information reaches an agency, it should be initially
screened with respect to the following considerations:
Does the new information pertain to a programmatic NEPA
review that was prepared for a now-completed decision-making process?
Are there any more decisions to be made by the agency that
would use the original NEPA review to meet all or a portion of the
agency's NEPA compliance responsibilities for any upcoming decision?
If there are no further decisions to be made, revising the original
programmatic NEPA review serves no purpose and is not required. If the
new information is relevant to a future decision for which the agency
intends to rely upon the original programmatic NEPA review to meet all
or a portion of its NEPA compliance responsibilities, then the new
information must be reviewed in order to determine if it has any
potential effect on the content of the original programmatic review,
either in terms of: (a) The accuracy of the previously analyzed impacts
(direct, indirect or cumulative); or (b) the feasibility of the
alternatives presented or their comparative analysis. If
supplementation is not required, agencies should consider documenting
that determination which, for example, could be done, through a
memorandum to the record that could be included in the administrative
record for the programmatic NEPA review.
The agency is responsible for making a reasoned determination
whether new information raises significant new circumstances or
information regarding environmental impacts or involves substantial
changes in the actions decided upon in the programmatic analysis.\61\
When a PEA was used, the determination must consider whether the PEA
and FONSI are sufficient or whether an EIS is now necessary. If there
is a need to supplement, a supplemental PEA can address the new
information and result in a FONSI when the agency's consideration of
the context and intensity of the effects of the programmatic proposal
warrant a FONSI.\62\
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\61\ 40 CFR 1502.9.
\62\ 40 CFR 1508.27.
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When an agency determines there is a need to supplement a NEPA
review, programmatic NEPA reviews provide alternative ways to complete
that supplementation. The traditional approach would be to supplement
the base document, the original PEA or PEIS. Alternatively, if a new
tiered NEPA review can include consideration of the programmatic
issues, then the tiered review can also serve as the vehicle for
supplementing the PEA or PEIS. When the new information's effects are
limited to potential impacts or alternatives associated with the next
stage, or project- or site-specific decision, then the tiered analysis
can address the new information without having to supplement the PEA or
PEIS.
VI. The Lifespan of a Programmatic NEPA Document
Agencies must consider and make reasonable efforts to anticipate
the length of time the programmatic decision and its supporting NEPA
review will be maintained and used for subsequent tiered reviews.
Programmatic documents may become outdated depending on the specificity
and analyses included in them. Agencies should determine the factors
that may result in the need to supplement or refresh the analysis,\63\
establish criteria for evaluating the programmatic document for its use
as a basis for subsequent proposal-specific NEPA, and communicate this
to stakeholders. When a programmatic review is projected to have a long
life span, then the agency should pay close attention to the possible
effects of new information.
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\63\ 46 FR 18026 (refer to question 32 in CEQ's 40 Most Asked
Questions). As a rule of thumb, if the proposal has not yet been
implemented, or if the EIS concerns an ongoing program, EISs that
are more than 5 years old should be carefully reexamined to
determine if the criteria in sec. 1502.9 compel preparation of an
EIS supplement.
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VII. Conclusions
This guidance is intended to assist agencies in preparing PEISs and
PEAs that address broad, strategic, programmatic level analyses.
Agencies should consider using PEAs and PEISs whenever appropriate.
Programmatic NEPA reviews provide an opportunity for considering
environmental consequences at a broader level and enhance the
integration of environmental concerns and mitigations into an agency's
planning procedures. In addition, agencies that are able to clearly
explain how specific, outstanding, or future actions will be addressed
in subsequent tiered documents, and how the analyses will be vetted
publicly, will ensure that the public is informed and can improve the
quality of participation and analysis agencies receive from the public,
thereby enhancing decision-making. This guidance also is intended to
assist NEPA practitioners in realizing the benefits of programmatic
NEPA reviews. It should be used in conjunction with the regulations and
guidance previously issued by CEQ (see relevant excerpts in Appendix B)
and any applicable agency
[[Page 50589]]
NEPA procedures established in accordance with 40 CFR 1507.3.
Appendix A: Programmatic and Tiered Analyses
Programmatic and tiered analyses differ in their focus and scope.
The following table indicates the general differences between
programmatic and subsequent tiered analyses.64
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Subsequent (e.g.,
project- or site-
Programmatic level specific) tiered
level
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Nature of Action............ Strategic, Construction,
conceptual. operations, site-
specific actions.
Level of Decision........... Policy, program, Individual
planning, suite of project(s).
similar projects.
Alternatives................ Broad, general, Specific alternative
research, locations, design,
technologies, construction,
fiscal measures, operation, permits,
socioeconomic, land site-specific.
use allocations.
Scale of Impacts............ Macroscopic, for Project level,
example, at a mainly local.
national, regional,
or landscape level.
Scope of Impacts............ Broad in scale and Localized and
magnitude. specific.
Time Scale.................. Long- to medium-term Medium- to short-
(e.g., Regulatory). term (e.g.,
Permit).
Key Data Sources............ Existing national or Field work, sample
regional analysis,
statistical and statistical data,
trend data, policy local monitoring
and planning data.
instruments.
Impacts..................... Qualitative and Generally
maybe quantitative quantifiable
to the degree (though not
possible. always).
Decision.................... Broad, strategic Detailed, project-
program, policy, or or site-specific,
plan. action-oriented.
Mitigation.................. General, broad suite Specific, precise
of potential measures applicable
measures that could to a proposed
apply and action.
potentially the
commitments on when
they will apply.
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[FR Doc. 2014-20199 Filed 8-22-14; 8:45 am]
BILLING CODE 3225-F4-P