NEPA Documents and Terminology

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NEPA Documents and Terminology
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Section objectivesAt the end of this section,
you should

• Understand the difference between the various
  NEPA documents,
• Know the functions of each particular document,
• Know what should be contained in various
  documents, and
• Understand various NEPA terms.

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References OSM Reg 1 Handbook on Procedures
for Implementing NEPA.

• CEQ Regs for Implementing NEPA
• DOI Manual 516 DM 1-7
• CEQ 40 Questions
• CEQ Scoping Guidance
• CEQ NEPA Regs Guidance
• Environmental Statement Memorandum
• Environmental Compliance Memorandum
• Environmental Review Memorandum

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ReferencesNEPA Procedures Course Handouts

• NEPA Memorandum
• Agenda
• Chapter 5-11 of the Office of Surface Mining -
  Federal Assistance Manual (FAM)
• NEPA Terminology
• Topical Index
• OSM Reg 31

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ReferencesNEPA Procedures Course Handouts

• Forty Questions
• Federal Register Notice NEPA Implementing
  Procedures
• OSM 181 CED
• Selected Laws and executive Orders
• Farmland Protection Policy Act
• Notice of Availability example
• FONSI example
• OSM EISs
• Appendix

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Some NEPA related web sites
Homepage for House Resources Committee NEPA Task
Force http//resourcescommittee.house.gov/nepatask
force.htm NEPA What Needs Fixing, What Doesnt,
and How Would You Fix It? http//resourcescommitte
e.house.gov/nepataskforce/press/eliforum_nepa2005.
pdf  Final Report Task Force on Improving
NEPA http//resourcescommittee.house.gov/nepataskf
orce/report/nepareport_finaldraft.pdf  Pombo ESA
Implementation Report http//resourcescommittee.ho
use.gov/issues/more/esa/implementationreport.htm  
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Some more web sites

• Modernizing NEPA Implementation, September 2003
• http//ceq.eh.doe.gov/ntf/report/finalreport.pdf
• Departmental Manuals
• http//elips.doi.gov/app home/index.cfm?fuseaction
  home
•  NEPAnet CEQ Task Force
• http//ceq.eh.doe.gov/nepa/nepanet.htm
•  EPA Envirofacts Data Warehouse
• http//www.epa.gov/enviro/

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Some NEPA terms we will discuss

• Environmental Assessment
• Environmental Impact Statement
• Scoping internal and public
• Impacts
• Direct impacts
• Indirect impacts
• Cumulative Impacts

• Impact Analysis
• Jurisdictional Wetland
• Significance
• Mitigation
• Intensity
• Context
• Duration

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Some NEPA acronyms

• BO Biologic Opinion
• BEBA Biological Evaluation/Biological
  Assessment
• CE, CX or CATEX Categorical exclusion
• CEQ Council on Environmental Quality
• DM Decision Memo
• DNA Determination of NEPA Adequacy
• EA Environmental Assessment
• EIS Environmental Impact Statement

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More acronyms

• EJ Environmental Justice Ex Order 12898
• ENBB Environmental Notification Bulletin Board
  (BLM)
• EPA Environmental Protection Agency
• FONSI Finding of No Significant Impact
• NOI Notice of Intent
• RMP Resource Management Plan
• MSO Mexican Spotted Owl
• ROD Record of Decision
• SHPO State Historic Preservation Office
• USFWS United States Fish and Wildlife Service

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Legal acronyms

• ESA
• Endangered Species Act of 1973
• NHPA
• National Historic Preservation Act of 1966
• FLPMA
• Federal Land Policy and Management Act of 1976
• NFMA
• National Forest Management Act of 1976

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More laws

• ARPA
• Archeological Resources Protection Act of 1979
• NAGPRA
• Native American Graves Protection and
  Repatriation Act of 1990
• SIPs
• State Implementation Programs
• (Clean Water Act)

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Categorical Exclusions

• "Categorical Exclusion" refers to routine actions
  that do not individually or cumulatively have a
  significant effect on the human environment, and
  that have no such effect in procedures adopted by
  a Federal agency.

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Because it can save you time and effort

• The first step in the NEPA process should be
• to determine if you are covered by a Categorical
  Exclusion (also called a CE, CX or Cat Ex).

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Two major points about categorical exclusions

• 1. CEs are granted for actions that are routine
  and DO NOT have a significant effect on the human
  environment...NOT because it would make an
  action, even an essential action, more expedient.

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• 2. The action must fit the formal Categorical
  Exclusion definition criteria declared by the
  agency.
• The list of allowable CEs for OSM (and
  recipients of their grants) is found in Appendix
  8 of the DOI's Manual on NEPA Compliance.

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When have you used a categorical exclusion?

• Refer to 516 DM 6, Appendix 8, Section 8.4
  (Categorical Exclusions)
• Think about some of the routine activities you
  do, and whether you think an environmental
  analysis would be a useful exercise.

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Categorical Exclusion Determination

• If the proposed action is meets the criteria for
  a categorical exclusion, a categorical exclusion
  determination (CED) is prepared, and included in
  the administrative record of the originating
  office.
• Authority for approving a CED rests with the
  Field Office Director for field office actions.

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If the proposed action does not fit the
definition for a CE, an EA must be prepared.

• Exception If the proposed action normally
  requires an EIS.
• Actions that normally require an EIS are in
  Appendix 8, Section 8.3.

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Environmental Assessment
A concise public document that a Federal agency
prepares under the National Environmental Policy
Act (NEPA) to provide sufficient evidence and
analysis to determine whether a proposed agency
action would require preparation of an
environmental impact statement (EIS) or a finding
of no significant impact (FONSI).
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Environmental Assessment

• EAs must provide enough information so the
  decisionmaker can determine whether to issue a
• 1. NOI Notice of Intent to Write an
  Environmental Impact Statement, or a
• 2. FONSI a Finding of No Significant Impact.

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An EA must analyze all realistic alternatives
under consideration.

• Do not dream up alternatives to fatten up the
  document.
• 90 percent of the EAs OSM typically reviews
  only have the no action and the preferred
  alternative.

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Environmental assessments must include at the
minimum the "no action" alternative and the
preferred alternative.
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States and Tribes should include discussions of
all other potentially viable alternatives.

• For States/Tribes conducting water supply system
  construction or replacement - at source
  abatement should be one alternative.

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When preparing an EA you must

• Define the proposed action and the alternatives.
• Assemble relevant information, baseline data and
  existing reports and studies.
• Describe the current environment.
• Evaluate the potential impacts.
• Determine cumulative impacts.
• Document that clearances have been received.

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Sections of an EA or EIS

• Section A or Chapter 1 - Introduction
• Section B or Chapter 2 - Proposed Action and
  Alternatives
• Section C or Chapter 3 - Affected Environment
• Section D or Chapter 4 - Environmental
  Consequences
• Section E or Chapter 5 - Consultation and
  Coordination
• Section E or Chapter 6 - List of Preparers
• Section F or Chapter 7 - References

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Clearances

• Two are ALWAYS required
• 1. SHPO letter
• NHPA Section 106 compliance
• 2. USFWS letter
• Section 7, informal or formal

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As the EA preparer, YOU must independently review
the appropriateness, and validity of any
information you include in the EA.
Its your responsibility to produce a good
environmental document.
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The decision maker (OSM) uses the EA to determine
whether to issue a

• FONSI
• Finding of No Significant Impact, or
• NOI Notification of Intent
• to write an Environmental Impact
  Statement.

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A FONSI is the expected result for all normal AML
situations.
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FONSI

• A FONSI can only be prepared by a federal agency.
  It briefly presents the reasons why an action,
  not otherwise excluded, would not have a
  significant impact on the human environment.
• A FONSI format is provided in OSM NEPA Handbook,
  Attachment 2.4, and in the Federal Assistance
  Manual, Chapter 5-11.

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FONSIs include

• The environmental assessment, or a summary of it.
• A listing of other environmental documents
  related to it.
• The reasons the conclusions of non-significance
  were reached.
• Who prepared and approved the document.

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The OSM Field Office Director normally approves
all FONSI's for that field offices actions.
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Who normally signs the FONSI for your office?
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Notice of Intent

• A Notice of Intent (NOI) means an environmental
  impact statement will be prepared and considered.
  NOIs include the following information
• A description of the proposed action and possible
  alternatives.
• A description of the agency's scoping process
  including the time and location of any scoping
  meeting.
• The name and address of a person within the
  agency who can answer questions about the
  proposed action and the environmental impact
  statement.

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NOI

• Notice of Intent
• to write an Environmental Impact Statement
  (EIS)

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NOIs can only be approved by the OSM Assistant
Director for Field Operations.

• NOIs are prepared in Washington DC with backup
  information submitted by the field offices.
• In some instances Field Offices may prepare the
  document, but signature authority remains in
  Washington.

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Environmental Impact Statement

• An Environmental Impact Statement (EIS) is a
  detailed written statement required by Section
  102(2)(C) of the National Environmental Policy
  Act.

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Environmental Impact Statement

• NEPA requires that EISs include
• The environmental impact of the proposed action.
• Any adverse environmental effects which cannot be
  avoided should the proposal be implemented.
• Alternatives to the proposed action.
• The relationship between local short-term uses of
  man's environment and the maintenance and
  enhancement of long term productivity.
• Any irreversible and irretrievable commitments of
  resources which would be involved in the proposed
  action should it be implemented.

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Normally an EIS should consider at least 3
alternatives

• Three types of actions
• Three types of alternatives
• Three types of impacts.

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Only OSM can prepare or act as a cooperating
agency on an environmental impact statement.

• Only the Director of OSM can sign and approve an
  EIS.
• Why do you think this approval authority rests
  with the OSM director?
• Take large amount of time.
• Take even larger amounts of money (budget).

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States and Tribes can be delegated the authority
to act on OSMs behalf in a cooperative
interagency effort, but OSM remains the
responsible party.
Federal to federal action
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Programatic EISs are general documents that
discuss impacts agency-wide or at the national
level.

• 1500.4 Reducing Paperwork
• Advises federal agencies to reduce paperwork by
  Using program, policy, or plan environmental
  impact statements and tiering from statements of
  broad scope to those of narrower scope to
  eliminate repetitive discussions of the same
  issues.

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Programmatic EIS

• A broad environmental impact statement prepared
  for a program or policy statement that assesses
  actions included within the entire program or
  policy (such as a site specific action) the
  subsequent statement or environmental assessment
  need only summarize the issues discussed in the
  broader statement, and incorporate discussions
  from the broader statement by reference and shall
  concentrate on the issues specific to the
  subsequent action.

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OSM Programmatic EISs

• OSM-2
• First AML EIS.
• Dealt primarily with the allocation of grant
  funds.
• OSM-11
• Second AML EIS.
• Dealt with the environmental consequences of
  specific project types nationally and regionally.

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Tiering

• Incorporates information in existing EISs or
  EAs by reference.
• Tiering goes from the general to the specific.
• The EA or EIS must be site specific you must
  provide sufficient discussion to relate the more
  general document to your specific project or site.

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NEPA terms

• Your FTE cant find the RFP or the NEPA DNA for
  the BLM or the FONSI for the USFS, and the USACE
  requires an EIS.
• A brief explanation of these terms when dealing
  with the public (or other professionals) will
  greatly enhance your ability to communicate.

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Cumulative Impact

• The impact on the environment which results from
  the incremental impact of the action when added
  to other past, present, and reasonably
  foreseeable future actions regardless of what
  agency (Federal or non-Federal) or person
  undertakes such other actions.
• Cumulative impacts can result from individually
  minor but collectively significant actions taking
  place over a period of time.

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Why is the Cumulative Impact Analysis so
important?

• A large percentage of successful challenges to
  EAs and EISs are based on inadequate cumulative
  impact analysis.

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The cumulative impact analysis should consider if
the proposed action is

• Time crowded - the events would be scheduled so
  close in time that the system can't recover
• Space crowded - the events would overlap in space
  or location or are so close that their impacts
  cannot not dissipate or
• Multiplicative or synergistic - several different
  proposed events together become more problematic
  than they would be if occurring separately.

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Cumulative impact projections are usually based
on

• Judgment (art) - generally not a scientific
  analysis you are asked to predict reasonably
  foreseeable outcomes.
• The landscape scale - generally a naturally
  occurring unit, a watershed for example.
• Adjusting the timing - mitigation of cumulative
  impacts can be accomplished by staggering the
  events which can negate the synergistic effects
  of cumulative impacts.

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What are some examples of cumulative impacts
caused by reclamation activities or projects?

• Impacts to deer or elk herd
• Traffic
• Noise
• Activity

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Mitigation - a NEPA word

• Mitigate - to cause to become less harsh or
  hostile.
• Mitigation in NEPA includes the following
  concepts

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Mitigation

• NEPA defines mitigation as action taken to avoid,
  reduce the severity of, or eliminate an adverse
  impact. Mitigation can include one or more of the
  following
• Avoiding impacts
• Minimizing impacts by limiting the degree or
  magnitude of an action
• Rectifying impacts by restoring, rehabilitating,
  or repairing the affected environment
• Reducing or eliminating impacts over time and
• Compensating for the impact by replacing or
  providing substitute resources or environments to
  offset the loss.

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Compensatory mitigation is not favored because

• Compensatory mitigation sometimes never actually
  happens, people are leery.
• Environment created, restored or enhanced for
  compensatory mitigation is perceived to be
  "artificial" and incapable of replacing lost
  environmental values.
• Cash payment in lieu of actual environmental
  creation, restoration or enhancement is often
  equated with "buying off" concerns.
• If project impacts can be minimized in other
  ways, then consider compensatory mitigation as a
  last resort.

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What are some ways compensatory mitigation can be
used in AML programs?

• Fund cultural/historic projects.
• Fund/construct wildlife enhancements.
• Fund cooperative community projects such as
  parks.
• Others?

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Scoping

• Scope refers to the range of actions,
  alternatives, and impacts to be considered in an
  environmental impact statement or an
  environmental assessment.
• Formal Scoping is the process of determining the
  extent of an EIS and is defined by CEQ.

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Scoping means public participation.

• Making the public aware of the proposed project
• Timing, budget, schedule.
• Making other land managing agency officials aware
  of the proposed project.
• Making political officials such as mayors, county
  commissioners, state and federal legislators
  aware of the project.
• Asking for public input.

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SIGNIFICANCE

• Determining significance (as used in NEPA)
  requires the consideration of three factors.
• Context
• Intensity
• Duration

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CONTEXT

• Context means the action must be analyzed at
  several levels.
• Society as a whole,
• The affected region,
• The affected interests,
• The locality.

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INTENSITY

• Intensity refers to the severity of the impact.
• For OSM related work, severity can be defined
  using the the following terms
• Negligible or trace - at lower levels of
  detection.
• Minor - detectable, but slight.
• Moderate - readily apparent environmental impact.
• Potential to become major - potentially severe
  adverse impact.
• Major - severe adverse impact.

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What are examples of different intensity levels
you can expect in AML reclamation projects?
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DURATION

• Duration refers to how long the impact is
  expected to last.
• Short term - generally the life of the project.
• Long term - generally lasts longer than the life
  of the project.

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Use these terms to describe project impacts in
your exercise.

• The reclamation of the Kesterville Refuse Pile
  would have a short term, minor, and site specific
  impact on soil resources.
• The project would take 12 weeks to complete.
  During this time silt fences and straw bales
  would be used to prevent sediment from leaving
  the site. Fugitive dust would be controlled by
  use of a water truck. Minor compaction that
  could occur under temporary equipment routes
  would be remedied by ripping prior to placement
  of top soil.

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SIGNIFICANCE

• Significance varies with the setting of the
  proposed action. Generally significance should
  apply to a site specific action and look at the
  potential effects in the locale rather than in
  the world as a whole.
• Do not use the word SIGNIFICANT unless it is
  absolutely necessary!
• Consider words such as major, considerable,
  important, sizeable, substantial, etc.

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Analysis of Impacts

• For reclamation projects you must show you have
  considered all the potential impacts that could
  be caused by the proposed action and that you
  have have incorporated all necessary mitigation
  or protection measures needed to protect the
  environment into the project design.

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OSM Programmatic EIS
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Classroom Exercise

• Look at the exercise sheet dealing with documents
  and terminology.
• Situation Your new supervisor has been to a
  meeting and is clueless about a NEPA discussion
  and questions he was asked.
• You must prepare a briefing for your new boss.
• Select a spokesperson to present it to the class.
• Use the concepts we have discussed up until now
  in class.