The National Environmental Policy Act (NEPA) became law on January 1, 1970, and requires federal agencies to review the environmental effects of any proposed actions they are implementing, funding, or otherwise involved in. NEPA contains a Declaration of National Environmental Policy, that requires the federal government to use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. The range of actions covered by NEPA is broad and includes:
- making decisions on permit applications,
- adopting federal land management actions (oil and gas extraction, mining, grazing, etc.), and
- constructing highways and other publicly-owned or funded facilities.
Using the NEPA process, agencies evaluate the environmental and related social and economic effects of their proposed actions. Agencies also provide opportunities for public review and comment on those evaluations.
The NEPA Process
The NEPA process begins when a federal agency develops a proposal to take a major federal action. Federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment, but not all actions will have a significant effect. The environmental review under NEPA can involve three different levels of analysis (the information in this section if from the US Environmental Protection Agency website):
1. Categorical Exclusion (CATEX)
A federal action may be “categorically excluded” from a detailed environmental analysis if the federal action does not,
“individually or cumulatively have a significant effect on the human environment”
However, the CATEX must be reviewed by the lead agency (agency of oversight) to determine that the action does indeed pose no risk to the human environment.
2. Environmental Assessments (EA)
If a federal agency determines that a CATEX is not a sufficient level of analysis for the action, The federal agency an Environmental Assessment (EA) must then be prepared. The EA determines whether or not a federal action has the potential to cause significant environmental effects. Generally, the EA includes a brief discussion of:
- The need for the proposal
- Alternatives (when there is an unresolved conflict concerning alternative uses of available resources)
- The environmental impacts of the proposed action and alternatives
- A listing of agencies and persons consulted.
Based on the EA, the following actions can occur:
- If the agency determines that the action will not have significant environmental impacts, the agency will issue a Finding of No Significant Impact (FONSI). A FONSI is a document that presents the reasons why the agency has concluded that there are no significant environmental impacts projected to occur upon implementation of the action.
- If the EA determines that the environmental impacts of a proposed Federal action will be significant, an Environmental Impact Statement is prepared
3. Environmental Impact Statements (EIS)
Federal agencies prepare an Environmental Impact Statement (EIS) if a proposed major federal action is determined to significantly affect the quality of the human environment. The regulatory requirements for an EIS are more detailed and rigorous than the requirements for an EA.
Summary of the EIS Process
- An agency publishes a Notice of Intent in the Federal Register. The Notice of Intent informs the public of the upcoming environmental analysis and describes how the public can become involved in the EIS preparation.This Notice of Intent starts the scoping process, which is the period in which the federal agency and the public collaborate to define the range of issues and possible alternatives to be addressed in the EIS.
- A draft EIS is published for public review and comment for a minimum of 45 days.Upon close of the comment period, agencies consider all substantive comments and, if necessary, conduct further analyses.
- A final EIS is then published, which provides responses to substantive comments.Publication of the final EIS begins the minimum 30-day “wait period,” in which agencies are generally required to wait 30 days before making a final decision on a proposed action.EPA publishes a Notice of Availability in the Federal Register, announcing the availability of both draft and final EISs to the public. Find EISs with open comments or wait periods.
- The EIS process ends with the issuance of the Record of Decision (ROD). The ROD:
- explains the agency’s decision,
- describes the alternatives the agency considered, and
- discusses the agency’s plans for mitigation and monitoring, if necessary.
Biology and the NEPA Process
A thorough environmental review in an EIS (and to a lesser extent, an EA) will include a discussion of the following biological resources:
- Habitats and Vegetative Communities
- Migratory Corridors
- Special Status Species (regulated by a law, regulation or policy, such as threatened and endangered species)
- Impact Avoidance, Minimization, Mitigation and/or Compensation
One of the most important parts of the NEPA process is to determine which permits are required prior to an action, such as a Section 404 Clean Water Act Permit or an Endangered Species Act Section 7 Consultation. The NEPA process not only brings the need for these permits to light, but it allows the public an opportunity to weigh in on local or regional resources that may be of interest by submitting a question to the agency asking them to address potential impacts.