presentation title understanding the national ... · building strong ® us army corps of engineers...

BUILDING STRONG® US ARMY CORPS OF ENGINEERS | Jacksonville District

PRESENTATION TITLE


Understanding the National Environmental Policy Act AKA “NEPA for Newbies” Terri Jordan-Sellers, Biologist Environmental Branch, Planning Division

Leah Oberlin – Environmental Engineer Regulatory Division, Palm Beach Gardens Section

Jacksonville District U.S. Army Corps of Engineers



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National Environmental Policy Act of 1969

Applies to all Federal Actions Federal Projects Federal Funding Federal Permit or Authorization

Requires Environmental Impact Statement or Environmental Assessment or Categorical Exclusion

Emergency Procedures


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NEPA is Different from Other Environmental Laws

Does not manage or protect one or more specific resources (unlike ESA, CWA, CAA, etc).

Requires Federal agencies to CONSIDER and DOCUMENT the environmental impacts of their proposed actions as part of an agency’s OVERALL planning and decision-making.

Requires Federal agencies to cooperate with Federal, state and local governments, and other concerned public and private organizations and citizens during project planning.

Created the Council on Environmental Quality to advise the President on environmental matters and oversee NEPA compliance by Executive Branch agencies.


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NEPA is a FEDERAL Requirement

When a Federal agency takes an action that impacts the environment – NEPA is initiated Includes – Permits issued to citizens/private

organizations Federal navigation/shore protection projects Studies Construction Ongoing Operations and Maintenance

Every agency can have its own NEPA regulations, but they must also abide by “master” CEQ NEPA regulations


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Considerations

Federal agencies are required to determine the “effect of their actions on the human environment” Socially Economically Natural Resources Historic Resources


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NEPA “Umbrella”

• Title VI of Civil Rights Act of 1964

• Executive Order 12898 (Environmental Justice)

• Coastal Zone Management Act • Clean Water Act (CWA) • Clean Air Act (CAA) • Safe Water Drinking Act

(SDWA) • Endangered Species Act (ESA) • Solid Waste Disposal Act

(SWDA)

•Comprehensive Environmental Response, Compensation and Liability Act (CERLA)

•Emergency Planning and Community Right to Know Act of 1986 (EPCRA)

•National Historic Preservation Act (NHPA)

•Public Hearing Requirements •Archaeological and Historic

Preservation Act (AHPA) •Resource Conservation and Recovery

Act of 1976 (RCRA) •AND MORE…

Presenter

Presentation Notes

The NEPA “Umbrella’ represents the many laws and regulations that must be considered when developing a transportation project. For example, (read a few) This reemphasizes the need for strong interagency relationships - coordination.


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NEPA Limitations Relies heavily upon other environmental laws,

standards, policies, plans, programs, permits and conditions for decision criteria, monitoring, follow through, and enforcement

Federal officials are not required to adopt the most environmentally acceptable alternative; therefore NEPA imposes procedural, not substantive, decision making requirements

Neither CEQ, EPA, or the Corps has the authority to halt actions, however a formal and informal dispute resolution process helps to achieve accommodations


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NEPA Regulations CEQ Master Regulations for all federal agencies

40 CFR 1500-1508 Promulgated in 1978

USACE Specific Civil Works/Federal Projects 33 CFR 230

Regulatory Permits 33 CFR 325 Appendix B (points back to 33 CFR 230)


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NEPA Steps

We have a federal action... NEPA is initiated Is the project covered by a Categorical

Exclusion?


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Categorical Exclusion Regulatory Division

33 CFR part 325, appendix B 5 Cat Exs

Nationwide Permit 23 bringing in other agencies “Cat Exs” (BoR; USCG; Federal Highway Admin)

Civil Works – 33 CFR 230.9 19 Cat Exs.... Cover a variety of actions: from

disposal of federal lands to “minor maintenance dredging”

The Corps requires documentation of a Cat Ex for the record, some agencies do not.

Cat Ex DOES NOT undergo public review and comment.


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NEPA Steps

We have a federal action... NEPA is initiated Is the project covered by a Categorical

Exclusion? No? Conduct an Environmental Assessment


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Environmental Assessment (EAs)

For “Less Impactive” Activities Shorter Timetable Less Rigid Process Often uses the format for an EIS May Conclude with a Finding of No Significant

Impact – FONSI (an EIS is not required) May Conclude that an EIS is Required

Presenter

Presentation Notes

May jump straight to EIS No previous nourishment = EIS


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Scoping

Process Civil Works Regulatory Initiation Letter Public Notice* Meeting? Maybe No When start? As soon as practicable As soon as practicable

(15-days rcpt comp app)

►Scoping is where the agency asks for initial input from “the public” (agencies, governments, citizens, non-profits) with information about the project area, resources, etc.

►Should occur early and be an open process to determine “the SCOPE OF THE ISSUES to be addressed and for identifying SIGNIFICANT issues related to the proposed action.” (40 CFR 1501.7)

Presenter

Presentation Notes

How far and how Deep should we look at these issues?


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What happens after scoping? Resource studies

Natural (fisheries, benthic communities) Archeology/Cultural Geology

Consultation under Federal laws – ESA, EFH, SHPO, MMPA, CZMA May occur same time as public notice in Regulatory

permitting situation – depends on applicant submittals Prepare the NEPA documentation

Presenter

Presentation Notes

KISS!!! Don’t need to sell it – just tell it. Just the facts please.


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Environmental Assessment (EA)

Civil Works Regulatory Format Stand Alone document Part of the permit

evaluation package Public Draft document review?

Not Required (SAJ usually)

No (except if precedent setting or highly controversial)

Comment mechanism Draft document Public comment period (if noticed)

Final document Final EA/FONSI Permit & EA/SOF

If the EA cannot result in a Finding of No Significant Impact... Initiate the EIS process


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NEPA Steps We have a federal action... NEPA is initiated Is the project covered by a Categorical Exclusion? No? Conduct an Environmental Assessment Can you make a Finding of No Significant Impact? No? Environmental Impact Statement


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EIS (Environmental Impact Statement)

Highest Level of Examination Federal Actions “Significantly Affecting the

Quality of the Human Environment” Prescribed Format/Content Prescribed Process and Timetable


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When to do an EIS Test for Significance (40 CFR 1508.27)

1. Beneficial and Adverse effects* 2. Public Health and Safety 3. Uniqueness of Area 4. Controversy*Case law/scientific controversy

5. Uncertain, Unique, or Unknown Risks 6. Precedent for Future Actions 7. Cumulative Impact* 8. Scientific, Cultural, or Historic Resources 9. Endangered or Threatened Species* 10. Threaten Violation of Federal Environmental Law * - Most common issues in USACE projects


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EIS Process Scoping

Notice of Intent to prepare an EIS – Federal Register (FR) May include meetings with agencies & public Scoping letter, meetings – comment period 30-60 days

Prepare Draft EIS Notice of Availability of Draft EIS – FR

45-60 day comment period Usually a public meeting/hearing held during comment period Comments received (from all sources) are reviewed and

incorporated into the Final EIS Final EIS announced in FR

30 day comment period New, substantive comments are addressed Record of Decision (ROD) is signed and published

Usually takes about 12 – 18 months to complete process (more time for more complex project)


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EIS Process Civil Works Regulatory

Who prepares?? In-house/ Sponsor/Contractor

3rd party contractor approved by RD

Who pays? Cost-share Applicant Who directs? The Corps The Corps


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Tiering from Previous NEPA documents

CEQ regulations allow for the “reuse” of information previously gathered – they call it Tiering.

“§1502.20 – Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review.”

Prevents duplication, increases efficiency, reduces expenditure of tax dollars. EIS for a Storm Damage Reduction Project in 2004 Some things have changed in project New EA to tier off (incorporate all previous applicable

information by reference) Update/modify/incorporate lessons learned into new EA.


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Two Fed’s on a Mission... In other words – my project is in the jurisdiction of

two DIFFERENT Federal agencies. BOEM and USACE USACE and USCG

Actions are DIRECTLY related Mining sand in federal waters – BOEM Placing sand on the beach - USACE

Agencies should join together in ONE NEPA document. Joint preparation of NEPA document OR - One will be determined to be the LEAD agency

and the other(s) would be cooperating agencies under a Memorandum of Agreement.


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More info on NEPA NEPA documents do not expire BUT…situations change.. New listed species/critical habitat Resources “grow” in the channel…

CW: Review the NEPA documents every 5 years and either update or re-FONSI RD: NEPA is only good for the life of the

permit, BUT NEPA can be reused if nothing changes for new permit.


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Resources and Info... CEQ NEPA Home – http://ceq.hss.doe.gov/index.html Helpful NEPA links - http://draftnepa.wetpaint.com/page/Helpful+NEPA+Internet+Links CEQ NEPA Guidance - http://ceq.hss.doe.gov/nepa/regs/guidance.html SAJ-RD Public Notice Website - http://www.saj.usace.army.mil/Missions/Regulatory/PublicNotices.aspx CEQ’s 40 Frequently Asked Questions - http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm

http://ceq.hss.doe.gov/index.html

http://draftnepa.wetpaint.com/page/Helpful+NEPA+Internet+Links

http://draftnepa.wetpaint.com/page/Helpful+NEPA+Internet+Links

http://ceq.hss.doe.gov/nepa/regs/guidance.html

http://www.saj.usace.army.mil/Missions/Regulatory/PublicNotices.aspx

http://www.saj.usace.army.mil/Missions/Regulatory/PublicNotices.aspx

http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm


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Contact Info

Terri Jordan-Sellers [email protected] 904-232-1817 Leah Oberlin [email protected] 561-472-3517

mailto:[email protected]

mailto:[email protected]

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