Current through Register Vol. 50, No. 12, December 20, 2024
A. The state environmental review process
(SERP) provides the policy for conducting environmental reviews of construction
projects that are funded by federal funds in Louisiana's CWSRF. The reviews
shall be consistent with the requirements of the National Environmental Policy
Act (NEPA) of 1969,
42 U.S.C.
4321 et seq., as implemented
by the Council on Environmental Quality (CEQ) NEPA Regulations (40 CFR Parts
1500-1508). Pursuant to the 1987 amendments to the Clean Water Act, the United
States Environmental Protection Agency (EPA) specified that state agencies may
either develop or revise their own environmental review methods. They may also
adopt and apply the procedures of 40 Code of Federal
Regulations (CFR) Part 6. The CWSRF has adopted the procedures as
outlined in 40 CFR Part 6, procedures for implementing the National
Environmental Policy Act and assessing the environmental effect abroad of EPA
actions.
B. All terminology used in
this document is consistent with the terms defined in 40 CFR Part 1508 (CEQ
NEPA regulations). The following definitions are provided for
clarity.
Environmental Information Document
(EID) - any written analysis prepared by an applicant, or
their authorized representative, describing the environmental impacts of a
proposed project. This document shall be of sufficient scope to enable the
CWSRF to identify potentially significant environmental concerns and the
associated potential impacts of the proposed project.
Environmental Review - the process
whereby an evaluation is undertaken by the CWSRF to determine whether a
proposed project may have a significant impact on the environment.
Preliminary Engineering Report (PER)-
any written study prepared by an applicant, or their authorized representative,
describing the need and recommendations for new, expanded, or upgraded
wastewater facilities. The documents shall include a study of any
socioeconomic, environmental, or other unique features. It shall include a
forecast of planning area future conditions a detailed economic analysis for
each principal alternative, and a description of the process, design flow,
effluent limits, cost, and plan for implementation of the proposed wastewater
treatment works.
C. The department
shall conduct a NEPA-type review of construction projects proposed for funding
through the CWSRF, if required. This review shall be conducted as early as
possible in project formulation to ensure that all projects comply with
applicable local, state, and federal laws, and departmental rules relating to
the protection and enhancement of the environment. Based upon the department's
review, it shall make a formal determination regarding the potential social and
environmental impacts of the proposed project. The determination shall include
any necessary mitigation measures as a condition of financial assistance. No
financial assistance shall be provided until a final environmental
determination has been made. Any public, private, or governmental entity shall
be allowed to seek any administrative or legal review provided by law from the
department determinations. Applicants to the CWSRF shall obtain guidance from
the department regarding the scope of the environmental review to be conducted,
and the environmental information the applicant is required to submit in
support of the proposed project. Applicants are strongly encouraged to consult
with the department in the early stage of project formulation. This
consultation is to determine whether a project is eligible to be categorically
excluded from a substantive environmental review, determine alternatives to the
proposed project for evaluation, and/or identify potential environmental issues
which may impact its application.
1. The
determinations that will apply to construction projects proposed to be
implemented include a determination to:
a.
issue a categorical exclusion (CE);
b. issue a finding of no significant impact
(FONSI); or
c. require an
environmental impact statement (EIS).
2. A project may be categorically excluded
from a substantive environmental review if the project fits within a category
of actions identified in Subparagraph C.2.c of this Section that are eligible
for exclusion and the project does not involve any extraordinary circumstances
identified in Subparagraph C.2.d of this Section. Applicants are not required
to prepare an environmental information document (EID) or preliminary
engineering report (PER) for projects that are being considered for CE. An
environmental assessment (EA) is not required if the project is categorically
excluded.
a. If a project is determined to be
categorically excluded, a written CE determination shall be prepared by the
department and published in the official parish journal at the location of the
project. The CE determination constitutes a final decision of the
administrative authority.
b. The
department may identify categories of actions that do not individually,
cumulatively over time, or in conjunction with other actions, have a
significant effect on the quality of the human environment. These do not
include projects that provide a capacity to serve a population 30 percent
greater than the existing population, that directly or indirectly involve
upgrading, or that extend infrastructure systems primarily for the purposes of
future development.
c.
Department-identified CEs include, but may not be limited to:
i. actions at facilities involving routine
facility maintenance, repair, and groundskeeping; minor rehabilitation,
restoration, renovation, or revitalization of existing facilities;
replacement as defined in LAC 33:IX.2105, of equipment;
acquisition and installation of equipment (including equipment needed solely
for purposes of emergency preparedness); or construction of new minor ancillary
facilities adjacent to or on the same property as existing
facilities;
ii. actions relating to
existing infrastructure systems (i.e., sewer systems, drinking water supply
systems, and stormwater systems that include combined sewer overflow systems)
that involve minor upgrading, minor expansion of system capacity or
rehabilitation (i.e., functional replacement) of the existing system and system
components, (i.e., sewer collection network and treatment system; the system to
collect, treat, store, and distribute drinking water; and stormwater systems,
including combined sewer overflow systems) or construction of new minor
ancillary facilities adjacent to or on the same property as existing
facilities. This category does not include actions that:
(a). involve new or relocated discharges to
surface or ground water;
(b). will
likely result in the substantial increase in the volume or the loading of
pollutant to the receiving water;
(c). will provide capacity to serve a
population 30 percent greater than the existing population;
(d). are not supported by the state, other
regional growth plan, or strategy; or
(e). directly or indirectly involve or relate
to upgrading or extending infrastructure systems primarily for the purposes of
future development; and
iii. actions in unsewered communities
involving the replacement of existing on-site systems, providing the new
on-site systems do not result in substantial increases in the volume of
discharge, or the loadings of pollutants from existing sources, or relocating
an existing discharge.
d. Extraordinary circumstances that would
preclude issuance of a CE include, but are not limited to, the following:
i. the proposed project is likely to have
potentially significant environmental impacts on the quality of the human
environment either individually or cumulatively over time;
ii. the proposed project is likely to have
disproportionately high and adverse human health or environmental effects on
any community including minority communities, low income communities, or
federally-recognized Native American tribal communities;
iii. the proposed project is likely to
significantly affect federally listed, threatened, endangered species, or their
critical habitat;
iv. the proposed
project is likely to significantly affect national natural landmarks or any
property with nationally significant architectural, historic, prehistoric,
archeological, or cultural value, including but not limited to, property listed
on or eligible for the National Register of Historic Places;
v. the proposed project is likely to
significantly affect environmentally important natural resource areas such as
wetlands, floodplains, significant agricultural lands, aquifer recharge zones,
coastal zones, barrier islands, wild and scenic rivers, and significant fish or
wildlife habitat;
vi. the proposed
project is likely to cause significant adverse air quality effects;
vii. the proposed project is likely to have a
significant effect on the pattern, type of land use (i.e., industrial,
commercial, agricultural, recreational, or residential), growth and
distribution of population including altering the character of existing
residential areas, or not consistent with state government, local government,
or federally-recognized Native American tribe approved land use plans, or
federal land management plans;
viii. the proposed project is likely to cause
significant public controversy about a potential environmental impact of the
proposed project; and
ix. the
proposed project is likely to conflict with federal, state, local government,
federally-recognized Native American tribe, federal environmental, resource
protection, or land use laws or regulations.
e. A CE determination shall be rescinded if:
i. the proposed project no longer complies
with the applicable 40 CFR Part 6 criteria for CE due to project changes;
or
ii. new information involves or
relates to at least one of the extraordinary circumstances, or otherwise
indicates serious environmental issues exist.
f. When the department has determined that a
CE is to be rescinded based upon this criteria, the department shall prepare a
notice of intent (NOI) to rescind the CE previously applied to the project and
require the preparation of an EID or EIS.
3. A FONSI may be prepared based on a
proposed project's EA, which will be prepared based on a substantive
environmental review conducted by the department and supported by an EID
prepared in conjunction with the facility plan (FP) prepared by the applicant.
If the EA supports the finding that the proposed project will not have a
significant effect on the human environment or includes any commitments to
mitigation that render the impacts of the proposed project insignificant, then
the administrative authority will issue a FONSI. If the EA does not support a
FONSI, then an EIS shall be prepared.
4. An EIS may be required based on a proposed
project's EA, which will be prepared based on a substantive environmental
review conducted by the department and supported by an EID prepared in
conjunction with the PER prepared by the applicant. An EIS may also be required
without an EA when the proposed project is deemed a major action significantly
affecting the quality of the human environment. A project normally requires an
EIS if the administrative authority determines:
a. the project will significantly affect the
pattern and type of land use (i.e., industrial, commercial, recreational, or
residential), or growth and distribution of the population;
b. the proposed project is inconsistent with
federal, state, local government, federally-recognized Native American tribe,
or federal environmental, resource protection, or land-use laws and management
plans for protection of the environment;
c. the project is likely to significantly
affect environmentally important resources such as:
ii. significant agricultural lands;
iii. aquifer recharge zones;
iv. threatened and endangered species or
their habitats;
vii. wild and scenic
rivers;
viii. significant fish or
wildlife habitat;
ix. national
natural landmarks; and/or
x. any
property on or eligible for the National Register of Historic Places;
or
d. the project is
likely to directly or indirectly, through induced development, involve
uncertain environmental effects, produce significant cumulative impacts in
conjunction with other government projects, or have significant adverse effects
upon local ambient air quality, local noise levels, surface water reservoirs,
or navigation projects.
5. Amended Projects, Previous Environmental
Determinations, and Usage of Other Relevant Environmental Documents by the
Department
a. In the event that changes are
made to a project after an environmental determination has been issued, the
administrative authority shall, prior to approval, examine the plans and
specifications, loan application, and related documents for consistency with
the environmental determination. Based upon the department's review of the
amended project, the administrative authority shall:
i. reaffirm and amend, as necessary, the
original determination through the issuance of a statement of
findings;
ii. rescind a CE and
issue a NOI that the preparation of an EID or an EIS will be
required;
iii. revise a FONSI and
make available to the public;
iv.
rescind a FONSI and issue a NOI that the preparation of an EIS will be
required;
v. revise a record of
decision (ROD) associated with an EIS and make available to the public;
or
vi. rescind a ROD via the
issuance of a NOI that financial assistance will not be provided.
b. The administrative authority
may accept and adopt previous NEPA environmental determinations (i.e., CE,
EA/FONSI, and EIS/ROD) issued within the last five years with the submittal of
an application to the CWSRF. Acceptance of previous environmental
determinations shall be affirmed through the issuance of a statement of
findings. Otherwise, the administrative authority shall re-evaluate the
project, environmental conditions, public views, and may reaffirm the original
environmental determination, or have a new environmental review conducted in
accordance with Subsection A of this Section.
c. The administrative authority may review
relevant planning, decision making, and/or environmental review documents to
determine if the proposed project or any of its alternatives have previously
been considered. The department may adopt the existing document, or incorporate
by reference, any pertinent part of that document.
6. Construction Prior to Environmental Review
a. An applicant may, at the applicant's risk,
commence construction of part of the proposed project prior to completion of
the necessary environmental review when that part of the project will:
i. immediately remedy a severe public health,
water quality, or environmental problem;
ii. not preclude any identified reasonable
alternatives;
iii. not cause
significant direct or indirect environmental impacts including those which
cannot be acceptably mitigated without completing the entire project;
iv. not be significantly controversial
concerning a potential environmental impact; and
v. all other parts of the proposed project
remain subject to the completion of the environmental review process prior to
construction.
b. The
administrative authority shall make a determination of eligibility for work
performed under Subparagraph C.6.a of this Section after submittal, approval of
the PER, and completion of the environmental review. There is no guarantee that
work undertaken prior to the loan award will be eligible for funding.
D. Environmental
Information Requirements
1. A minimum of one
copy of the information required in this Subsection shall be submitted to the
department by the applicant.
a. Categorical
Exclusions (CE). Applicants seeking a CE shall provide the department with
sufficient documentation to demonstrate compliance with the criteria listed
under Subparagraph C.2.c of this Section. If requested by the administrative
authority the applicant shall submit additional information to support the
application of a CE to the applicant's project and/or whether any extraordinary
circumstance applies. At a minimum, additional information consists of:
i. a brief description of the proposed
project, including maps and drawings;
ii. a brief description of the no action
alternative;
iii. a statement
specifying the department-identified CE, as listed in Subparagraph C.2.c of
this Section which applies to the proposed project; and
iv. a statement that no extraordinary
circumstances, as identified in Subparagraph C.2.d of this Section, apply to
the proposed project.
b.
Environmental Information Documents (EID). An EID is not required when the
project is categorically excluded and does not involve extraordinary
circumstances, or when the project has already been determined to require the
preparation of an EIS. Otherwise, the applicant shall submit an EID that
provides sufficient information for the administrative authority to undertake
an environmental review and prepare either an EA/FONSI and/or request the
preparation of an EIS for the project. The EID may be incorporated into the PER
or submitted separately, and the administrative authority shall provide
guidance to applicants on both the format and contents of the EID.
i. Contents. At a minimum the contents of the
EID shall include:
(a). the purpose and need
for the project;
(b). the existing
environmental setting of the project;
(c). the alternatives to the project,
including the no action alternative;
(d). a description of the proposed
project;
(e). the potential
environmental impacts of the proposed project, including those which cannot be
avoided;
(f). a description of
public participation activities conducted, issues raised, and changes to the
project which may be made as a result of the public participation process;
and
(g). documentation of
coordination with appropriate governmental agencies.
ii. Availability to the Public. At least 30
days in advance of submittal and availability of the PER and EID, the applicant
shall provide a public notice of the availability of the PER and EID for public
review and comment in a newspaper of general circulation in the project area.
The applicant shall make the PER and EID available to all federal, state, local
agencies, the affected public, and others that may have previously expressed an
interest in the project. A public hearing may be required by the department if
there is substantial public interest in conducting a hearing, or a hearing is
requested by another agency with jurisdiction over the proposed project. In the
event that a public hearing is required, the administrative authority shall
provide guidance to the applicant regarding the contents of the public hearing
notice and of the public hearing. The public hearing and the availability of
the PER for public review shall be advertised by the applicant at least 30 days
in advance in the newspaper of general circulation in the project area.
Following the public hearing the applicant shall provide the department with a
verbatim transcript of the hearing, a copy of the public hearing notice with
proof of publication, a list of all applicants and agencies notified of the
public hearing, a list of all attendees, and responses to any substantive
comments received.
c.
Environmental Impact Statements (EIS). In the event that an EIS is required,
the applicant shall provide sound analysis and clear presentation of
alternatives, including the no action alternative, the selected alternative,
and their environmental, economic, and social impacts. The administrative
authority may request the applicant to prepare an EIS without first undertaking
an EA. The EIS format shall be followed by the applicant unless the
administrative authority determines otherwise. The EIS format shall include:
i. a cover sheet identifying the applicant,
the project(s), and the program through which financial assistance is
requested; and
ii. an executive
summary of the critical issues of the EIS in sufficient detail that the reader
may become familiar with the proposed project and its cumulative effects. The
summary shall include:
(a). a description of
the existing problem;
(b). a
description of each alternative, including the no action alternative;
(c). a listing of each alternative's
potential environmental impacts, mitigation measures, and any areas of concern;
and
iii. the body of the EIS shall
contain the following information:
(a). a
complete and clear description of the purpose and need for the proposed project
that clearly identifies its goals and objectives;
(b). a discussion of alternatives including,
but not limited to:
(i). a balanced
description of each alternative considered by the applicant including the no
action alternative;
(ii).
description including the size and location of the facilities, water lines,
land requirements, and construction schedules; and
(iii). the preferred alternative identified,
and any alternatives that are eliminated from examination along with the
reasons for their elimination;
(c). a description of the alternatives
available to the department including:
(i).
providing financial assistance to the proposed project;
(ii). requiring that the proposed project be
modified prior to providing financial assistance with conditions requiring the
implementation of mitigation measures; and
(iii). not providing financial assistance to
the proposed project;
(d). a description of the alternatives
available to other local, state, and federal agencies which may have the
ability to issue or deny a permit, provide financial assistance, or otherwise
affect or have an interest in any of the alternatives; and
(e). a description of the affected
environment and environmental impacts of each alternative, including, but not
limited to:
(i). the alternative evaluation
of the affected environment, which shall be based on, but not be limited to:
hydrology, geology, air quality, noise, biology, socioeconomic factors, land
use, and cultural resources of the planning area;
(ii). analysis of the total impact of each
alternative in a manner that will facilitate comparison;
(iii). the effect of the no action
alternative to serve as a baseline for comparison of the adverse and beneficial
impacts of the other alternatives; and
(iv). description of the existing environment
in the no action section for background information;
iv. the draft EIS shall be public noticed for
a period of 30 days. The final EIS shall include a list of comments, a list of
commenters, a commenter key, responses, and the final decision(s) of the
department on any such comments pertinent to the project or the EIS;
v. material incorporated by reference into an
EIS shall be organized to the extent possible into a supplemental information
document and be made available for public review upon request. No material may
be incorporated by reference unless it is reasonably available for inspection
by interested applicants within the comment periods specified in Clause
D.1.c.iv of this Section and Subclause D.1.c.vii.(b.) of this
Section;
vi. when an EIS is
prepared by contractors either for the department or the applicant, the
department shall independently evaluate the EIS prior to issuance of the record
of decision and take responsibility for its scope and contents. The department
staff who reviews this evaluation shall be identified under the list of
preparers, along with those of the contractor, and any other parties
responsible for the content of the EIS;
vii. public participation required for an EIS
shall be conducted by the department, but may be supplemented by the applicant
depending upon the nature and scope of the proposed project. The following
requirements represent the minimum allowable to the applicant and the
department:
(a). as soon as practicable, and
in accordance with Subparagraph E.2.c of this Section, the department shall
convene a scoping meeting of the affected federal, state, and local agencies;
the applicant; and other interested parties to determine the scope of the EIS
after a determination has been made that an EIS is required. As part of the
scoping meeting the department shall, at a minimum:
(i). determine the significant issues and the
scope of analysis required of those issues in the EIS;
(ii). identify the preliminary range of
alternatives to be considered;
(iii). identify potential cooperating
agencies and determine the information or analyses that may be needed from
cooperating agencies or other parties;
(iv). discuss the method of EIS preparation
and the public participation strategy;
(v). identify consultation requirements of
other laws and regulations; and
(vi). determine the relationship between the
preparation of the EIS and the completion of the PER, and any necessary
arrangements for coordination of the preparation of both documents;
(b). following the scoping process
the administrative authority shall begin the identification and evaluation of
all potential available alternatives to adequately address the range of issues
developed in the scoping process. A summary, including a list of the
significant issues identified, shall be provided to the applicant and other
interested parties. Preparation of the EIS shall be done at the discretion of
the department, by the staff, consultants to the department, or a consultant
contracted by the applicant subject to approval by the department. When a
consultant is used for the preparation of the EIS, the consultant shall be
required to execute a disclosure statement signifying it has no financial or
other conflicting interest in the outcome of the project. Both the draft EIS
and the final EIS shall be distributed and made available for public review in
a manner consistent with the requirements of Clause D.1.b.ii of this Section.
The department shall publish, in the
Louisiana Register and a
newspaper(s) of general circulation in the project area, a notice of
availability of the final EIS giving locations at which it will be available
for public review for at least 30 days prior to making the decision to provide
or deny financial assistance to the proposed project;
(c). at the time of its decision to provide
or deny financial assistance to the proposed project, the administrative
authority shall prepare a concise public ROD that shall:
(i). include a brief description of the
proposed project and all alternatives considered in the EIS, specifying the
alternative that was considered to be environmentally preferable;
(ii). clearly state the decision being made
and provide an explanation behind the decision; and
(iii). identify, if necessary, any
commitments to mitigation.
E. Environmental Reviews and Determinations
1. A substantial environmental review
resulting in the preparation of an EA is required for proposed projects that
are expected to result in environmental impacts and where the significance of
the impacts is not known. An EA is not required if the proposed project is
categorically excluded, or if the administrative authority has determined that
an EIS is required. The environmental review, supported by the applicant's EID
and PER, shall be conducted by the administrative authority to determine
whether any significant environmental impacts are anticipated and whether any
changes may be made to the proposed project in order to eliminate significant
adverse environmental impacts. As part of the review, the administrative
authority may require the applicant to submit additional information or
undertake additional public participation and coordination to support its
environmental determination. Based on the environmental review, the
administrative authority shall prepare an EA that provides sufficient
information and analysis for determining whether to issue a FONSI or require
the preparation of an EIS. The EA shall include:
a. a brief discussion of the:
i. need for the proposed project;
ii. alternatives considered, including the no
action alternative;
iii. existing
environment; and
iv. environmental
impacts of the proposed project;
b. identification and description of any
mitigation measures considered, including any mitigation measures that shall be
adopted to ensure the action will not have significant impacts; and
c. incorporation of documents by reference,
if appropriate, including the EID and PER for the proposed project.
2. Based on the EA, the
administrative authority shall issue a FONSI or a NOI to prepare an EIS.
a. The FONSI shall include a brief
description of:
ii. any mitigation
measures required of the applicant as a condition of its receipt of financial
assistance; and
iii. a statement to
the effect that comments supporting or opposing with the FONSI may be submitted
for consideration by the department.
b. The FONSI and EA shall be distributed to
all public and private parties, governmental entities, and agencies that have
previously expressed an interest in the proposed project. The availability of
the FONSI and EA shall be public noticed in a newspaper of general circulation
in the project area and invite the affected public to review and provide
comments. The public notice initiates the required 30-day public comment
period. No action regarding approval of the PER or the provision of financial
assistance shall be taken by the department until the end of the public comment
period.
c. The NOI to prepare an
EIS shall include a brief description of the:
i. proposed project and possible
alternatives;
ii. department's
proposed scoping process (see Clause D.1.c.vii of this Section) including an
invitation for comments and suggestions on the scope of the EIS, if available,
when, and where any scoping meeting will be held; and
iii. name and contact information for the
applicant's representative designated by the department to answer questions
about the proposed project and the EIS.
d. The NOI to prepare an EIS shall be public
noticed in a newspaper of general circulation in the project area and shall be
distributed to all public and private parties, governmental entities, and
agencies that have previously expressed an interest in the proposed project.
Distribution of the NOI begins the scoping process for the EIS, which shall
allow for a public comment period of 30 days. The department shall announce the
location, date, and time of any scoping meetings in the NOI, or by other
appropriate means, at least 15 days before the scoping meeting is
held.
F.
Cross-Cutting Environmental Laws
1. All
projects receiving funding from the CWSRF shall comply with the following
nonexclusive applicable laws respecting the human environment:
a. Archeological and Historic Preservation
Act, as amended;
b. Clean Air Act,
as amended;
c. Clean Water Act, as
amended;
d. Coastal Barrier
Resources Act, as amended;
e.
Coastal Zone Management Act, as amended;
f. Endangered Species Act, as
amended;
g. Environmental Justice,
Executive Order 12898, as amended;
h. Farmland Protection Policy Act, as
amended;
i. Fish and Wildlife
Coordination Act, as amended;
j.
Floodplain Management, Executive Order 11988, as amended;
k. National Historic Preservation Act, as
amended;
l. Protection of Wetlands,
Executive Order 11990, as amended;
m. Safe Drinking Water Act, as
amended;
n. Demonstration Cities
and Metropolitan Development Act, as amended;
o. Wild and Scenic Rivers Act, as amended;
and
p. Wilderness Act, as
amended.
2. Because
particular federal, state, and/or local agencies are charged with enforcement
and/or permitting required under these laws, applicants shall be provided
guidance regarding agency contact information and consultation. The department
shall require appropriate coordination and project planning with these
agencies.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
30:2011(D)(1).