National Environmental Policy Act (NEPA)

 

The National Environmental Policy Act of 1969 (42 USC 55) (NEPA) was established to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a “Council on Environmental Quality” (CEQ). The law is implemented under Protection of Environment regulations 40 CFR 1500 - 1508 (Council on Environmental Quality), and for federal highway projects, under the Federal Highway Administration (FHWA) regulations 23 CFR 771 (Environmental Impact and Related Procedures). (Other transportation agencies, such as the Federal Transit Authority, Federal Rail Administration, and Federal Aviation Administration also have rules and procedures for implementing NEPA.) The CEQ, within the Executive Office, coordinates federal environmental efforts and advises the President on environmental issues, but does not administer NEPA compliance. The law and regulations provide a process for documenting adverse and beneficial impacts for all federal actions.

When It Is Required

All federal actions, including projects that use federal funding or require a federal permit, must demonstrate compliance with NEPA. For projects that involve more than one federal agency, there is a “lead federal agency” that is charged with implementing NEPA, most commonly the FHWA for VTrans transportation projects. For purposes of this guidance document, FHWA procedures are provided. FHWA has published an Environmental Guidebook and a Technical Advisory (6640.8A) to facilitate the process. Links to FHWA’s and other agencies’ NEPA programs are provided below.

All NEPA documents must include documentation of any Section 106 or Section 4(f) findings or approvals. NEPA coordination is conducted by VTrans Environmental Specialists.

Permit Process

Since the FHWA is the lead federal agency on the majority of VTrans projects, the following discussion pertains primarily to FHWA procedures. The VTrans Environmental Specialist or Project Manager should be contacted to determine the correct NEPA procedures for air, rail, transit or other federally funded or sponsored non-FHWA projects.

There is no permit issued for compliance with NEPA. VTrans, as the “applicant” (defined in 23 CFR 771.107 as the “State, local, or federally-recognized Indian tribal governmental unit that requests funding approval or other action by the Administration and that the Administration works with to conduct environmental studies and prepare environmental review documents”), prepares a document demonstrating compliance with NEPA which is then approved by FHWA. There are three levels of NEPA clearance: a Categorical Exclusion, for projects with minimal environmental impacts; an Environmental Assessment, for projects where the significance of impacts is uncertain; and an Environmental Impact Statement, where the impacts are expected to be “significant”. The federal agency makes the determination of what level of document to prepare. Significance is based on the context and intensity of the impact (see 40 CFR 1508.27). FHWA further considers factors such as the type, quality and sensitivity of the resource involved; the project location; the duration of the effect; and the project context. The VTrans Environmental Section should be consulted prior to commencing a NEPA document, and can assist with questions about the NEPA classification, document content, model NEPA documents, and other issues.

NEPA Document Required

Description

Categorical Exclusion (CE)

Projects that cause minimal social, economic, or environmental impacts.

Environmental Assessment (EA)

Larger scale projects that do not meet CE requirements or with uncertain impacts. The EA provides evidence for determining whether to prepare an EIS or Finding of No Significant Impact (FONSI).

Environmental Impact Statement (EIS)

Projects that may significantly affect the quality of the human environment.

Categorical Exclusion

For projects that do not individually or cumulatively have a significant effect on the human environment, a Categorical Exclusion is prepared to document the findings. FHWA has in their regulations, “Environmental Impact and Related Procedures” (23 CFR 771.117), a list of 21 actions that meet the criteria for Categorical Exclusions without need for approval by FHWA – no formal documentation is necessary. Examples of actions that are categorically excluded include planning activities, landscaping, and bus and rail car rehabilitation. Twelve other activities are categorically excluded after it is demonstrated that they will not cause any significant impact. These activities are in general more closely related to construction projects, and include rehabilitation of highways, rehabilitation, reconstruction, or replacement of bridges, and changes in access control. Typically, a Categorical Exclusion document would be prepared by the state or local agency and approved by FHWA. However, VTrans has a Programmatic Agreement with FHWA that approves actions in both lists, as long as they do not involve certain kinds of impacts listed in an Appendix of the Programmatic Agreement. The Agreement eliminates the need for additional documentation or approval by FHWA. A table summarizing how projects are categorically excluded has been prepared for this manual (VTrans Categorical Exclusion Summary Table) VTrans provides document templates, including a letter, checklist, analysis sheet, and detailed instructions for demonstrating compliance with the Programmatic Agreement. Categorical Exclusions do not require any public review or hearings.

For projects that meet the criteria for one of the categorically excluded projects listed in 23 CFR 771.117, but that exceed the criteria listed in Appendix A, a Categorical Exclusion document is prepared, with a request for concurrence from FHWA. The Categorical Exclusion document has no standard format requirements, and may be simple or complex depending on the project, but in general discusses the impacts to resources that could disqualify the action as a Categorical Exclusion. For these non-programmatic CE documents, VTrans provides document templates for the cover letter and analysis sheet.

Environmental Assessment

When the significance of impacts of a project is uncertain, an Environmental Assessment (EA) is prepared. The applicant coordinates with appropriate agencies, and FHWA may ask other agencies to be “cooperating agencies”. The EA document format is not prescribed by regulation, but TA 6640.8A recommends the following format and content:

  • Cover Sheet
  • Purpose and Need Statement
  • Alternatives
  • Impacts
  • Comments and Coordination
  • Appendices
  • Section 4(f) Evaluation (if any)

A draft document is submitted to FHWA. The draft EA does not have to be circulated, but must be available for public review. Affected agencies must be notified of its availability, and a notice must be published in a newspaper. Some projects may require public hearings as part of the application process for certain federal funds, depending on the funding program, or the applicant may voluntarily conduct a public hearing. Following the public hearing or notice of availability, and the EA is revised to address the comments made on the draft EA, and a final EA is prepared. If no significant impacts are identified, the applicant provides to FHWA the revised EA, copies of comments received and responses to those comments, the transcript of the public hearing, if any, and recommends that FHWA make a “Finding of No Significant Impact” (FONSI). The FONSI constitutes FHWA approval of the EA. FHWA may, if they determine that the project involves significant impacts, recommend that an Environmental Impact Statement be prepared.

Timeframes for the preparation of a draft EA, comment period, preparation of a Final EA, and issuance of a FONSI can vary, but are generally on the order of several months to a year or more.

Environmental Impact Statement

When the proposed project is likely to cause significant environmental impacts, an Environmental Impact Statement (EIS) is prepared.

The process for preparation of an EIS for which FHWA is the lead agency is detailed in Highway regulation 23 CFR 771.123, “Draft Environmental Impact Statements”, and 23 CFR 771.125, “Final Environmental Impact Statements”. Additional guidance is provided in TA 6640.8A. Briefly, the process is:

  • A “Notice of Intent” is published in the federal register by FHWA. The Notice of Intent:

    • Describes the proposed action and possible alternatives;

    • Describes the proposed scoping process and says when and where any scoping meeting will be held; and

    • Provides contact information for the agency official who can answer questions about the proposed action.

  • A scoping process with the public and other agencies takes place to identify the purpose and need for the project, the range of alternatives to be studied, and the issues to be addressed in the EIS.

  • A draft EIS is prepared that includes:

    • Purpose and Need – A clear and concise statement that drives the development of the range of alternatives

    • Alternatives – including the “No-action” alternative. All reasonable alternatives must be evaluated, and other alternatives that may have been considered earlier in the process must be discussed, with reasons for why they were eliminated from detailed study.

    • Affected Environment - a discussion of the existing social, economic, and environmental settings surrounding the project. A detailed list of resources and topics that should be covered is available in TA 6640.8A.

    • Environmental Consequences – describes the impacts of the project alternatives as well as potential mitigation measures that could be taken.

    • Comments and Coordination – a summary of the scoping process and other coordination efforts, and comments received during EIS preparation.

    • List of Preparers

  • The draft EIS is submitted to FHWA and reviewed.

  • The draft EIS is circulated for comment to federal, state, and local agencies and entities that have an interest in or would be affected by the proposed action, public officials, interest groups, members of the public known to have an interest, and to the Environmental Protection Agency. There is a minimum 45 day review period of the draft EIS.

  • A public hearing is held in most cases. Projects that require significant amounts of right of way or have other significant effects must include a public hearing.

  • A final EIS is prepared that addresses comments received on the draft EIS and that identifies a “preferred alternative”.

  • The final EIS is distributed to appropriate parties, including the EPA, made available for viewing, and a notice of availability is published in a local newspaper. The EPA has developed a program to allow electronic filing for EISs.

  • The EPA files a Notice of Availability in the Federal Register stating that the EIS has been filed.

  • A “Record of Decision” (ROD) is issued by FHWA, no sooner than 30 days after the Final EIS is submitted. The Record of Decision presents the basis for the decision, summarizes mitigation measures, and documents Section 4(f) approval. If FHWA decides later to approve a different preferred alternative, a revised ROD is prepared and distributed to all parties that received a copy of the final EIS.

  • FHWA is responsible for ensuring that promised mitigation is carried out.

Timeframes for the preparation of an EIS to the issuance of the ROD are highly variable, but typically last well over a year.

Re-evaluation

If the final EIS is not accepted by FHWA within 3 years from the date of the draft EIS circulation, a written re-evaluation is required to determine whether there have been changes in the project or affected environment that would require a supplement to the draft EIS or a new draft EIS. There is no required format for the re-evaluation but it may include additional studies and coordination to reflect any changes in the affected environment, changes to the project, or new issues that have been identified since the draft EIS. In practice, a written re-evaluation is also prepared for an EA or a CE if no major steps to advance the action have occurred within three years after the approval of the previous NEPA document.

Regulatory Agency

The guidance above is based on FHWA policy, however the lead federal agency for VTrans projects depends on project federal funding source and/or jurisdiction, and may include FHWA, FRA, FAA, FEMA, or USACOE.

VTrans Environmental Specialists

For More Information

FAA Environmental Policy and Guidance

http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_pol...

FRA Environmental Impact Assessment

http://www.fra.dot.gov/Pages/249.shtml

EPA - Submitting Environmental Impact Statements

http://www.epa.gov/oecaerth/nepa/submiteis/index.html

FHWA Environmental Toolkit: Has sections on NEPA processes, T6640.8a, and other guidance.

http://environment.fhwa.dot.gov/index.asp

NEPA and Transportation Decisionmaking - FHWA guidance

http://www.environment.fhwa.dot.gov/projdev/pd3tdm.asp

Programmatic agreement between FHWA and VTrans regarding Categorical Exclusions

Programmatic CE Template

Non-programmatic CE Template