NEPA | National Environmental Policy Act

National Environmental Policy Act

Current Developments

• CEQ Launches NEPA Pilot Program
• CEQ Issues New Guidance on Mitigation and Monitoring
• CEQ Issues New Guidance on Categorical Exclusions
• CEQ Issues Report on NEPA for Outer-Continental Shelf Oil and Gas Exploration and Development
• NEPA's 40th Anniversary
• American Recovery and Reinvestment Act of 2009 & NEPA
• New Agency NEPA Procedures
• EIS Filings
• Success Stories and NEPA Benefits

Proposed and Recently Implemented NEPA Procedures*

Proposed Agency NEPA Procedures

- National Indian Gaming Commission, Department of the Interior (NGIC): NGIC published proposed procedures for implementing NEPA and Executive Order 11514, Protection and Enhancement of Environmental Quality. Published December 4, 2009 with comments due January 18, 2010 (74 FR 63765) and comment period extended thru March 4, 2010 (75 FR 3756).

- Department of Housing and Urban Development: Amendments to HUD's Environmental Regulations - published for comment September 12, 2007 (72 Federal Register 52264).

- Office of Justice Programs, Department of Justice: Correction Program Office's Interim Final Rule for Environmental Impact Review Procedures for the Violent Offender Incarceration/Truth-In-Sentencing Incentive Grants Program - published for comment on August 8, 2000 (65 Federal Register 48592).

*NOTE: To access the Federal Register, go to: http://www.gpoaccess.gov/fr/index.html

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Recently Implemented Agency NEPA Procedures (within the last 24 months)

- National Aeronautics and Space Administration (NASA): NASA amended its NEPA implementing regulations (14 CFR Subpart 1216.3), including its categorical exclusions at section 1216.304. The amendment updates the 1988 regulations in light of changes in agency structure, missions, and experience. The proposed rule was published on July 21, 2011 (76 FR 43616), and the final rule was published on January 23, 2012 (77 FR 3102).

Defense Logistics Agency, Department of Defense (DLA): DLA revised its NEPA implementing regulations (Defense Logistics Agency Regulation 1000.22). The notice of availability of the revised regulation was published on May 18, 2011 (76 FR 28757), and the notice of availability of the final regulation was published on November 23, 2011 (76 FR 72391).

- Department of Energy (DOE): DOE amended its NEPA regulations (10 CFR Part 1021), particularly the categorical exclusions listed in Subpart D. The amendment better aligns the Department's regulations with DOE's current activities and recent experiences, and update provisions with respect to current technologies and regulatory requirements. The Notice of Proposed Rule Making was published in the Federal Register on January 3, 2011 (76 FR 214) and the final was published on October 13, 2011 (76 FR 63764).

- Federal Highway Administration: The Memorandum of Understanding Assigning Environmental Responsibilities to Utah was updated and signed on June 28, 2011 (http://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:2053). The MOU assigns to Utah the FHWA's responsibility for determining whether a project is categorically excluded from preparation of an environmental assessment or an environmental impact statement under NEPA and for carrying out certain other responsibilities for conducting environmental reviews, consultations, and related activities for Federal-aid highway projects. The proposed MOU was published May 27, 2011 (76 FR 30995) and finalized on June 28, 2011.

BACKGROUND: The previous MOU with Utah was signed in July 2008. Transportation reauthorization authority at sections 6004 and 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Public Law 109-59), allows some states to take the place of FHWA in meeting environmental responsibilities (e.g., coordination and consultation under other federal environmental laws such as the Endangered Species Act, Clean Water Act, and National Historic Preservation Act) and obligations with regard to categorical exclusions (section 6004) and with regard to broader environmental analyses (section 6005). The Memoranda of Understanding outlining the states roles are at found at http://www.environment.fhwa.dot.gov/strmlng/index.asp. California, Utah, and Alaska have section 6004 categorical exclusion authority and California has section 6005 authority.

- Department of the Interior, Office of Hawaiian Relations (OHR): OHR published procedures for implementing the National Environmental Policy Act (NEPA) by adding Chapter 7 to the Departmental Manual 516. Published in draft December 3, 2009 (74 FR 63408), the regulation was published as final on October 29, 2010 (75 FR 66775).

- Nuclear Regulatory Commission (NRC): NRC published a rule amending its environmental regulations at 10 CFR Part 51 by revising and establishing new categorical exclusions. The proposed regulations were published for public review and comment on October 9, 2008 (73 FR 59540) and the final was published on April 19, 2010 (75 FR 20248).

- Department of Agriculture, Natural Resource Conservation Service (NRCS): NRCS published categorical exclusions for conservation and watershed rehabilitation activities that address activities, many funded under the American Recovery and Reinvestment Act of 2009, that do not have significant effects on the quality of the human environment and therefore should be categorically excluded from more intensive environmental reviews under NEPA. The notice of interim final rule was published on July 13, 2009 (74 FR 33319), and the final notice was published on February 10, 2010 (75 FR 6553).

- Armed Forces Retirement Home (AFRH): AFRH published proposed procedures for implementing NEPA and other environmental laws, regulations, and Executive Orders related to AFRH decision making. Published August 27, 2009, with comments due October 1, 2009, (74 FR 43649) and final published November 9, 2009 (74 FR 57608).

-Department of Energy (DOE): DOE published a policy statement regarding online posting of certain categorical exclusion determinations. To further transparency and openness in its implementation of NEPA, all categorical exclusion determinations covered by Appendix B, Subpart D of DOE's NEPA Regulations at 10 CFR Part 1021 will be available at http://www.gc.energy.gov/nepa on a regular basis. Categorical exclusions of a classified, confidential, or otherwise sensitive nature will not be posted. Published October 9, 2009 (74 FR 52129).

- U.S. Agency for International Development (USAID): USAID published a directive for new Categorical Exclusions covering certain internal, domestic activities funded their Operating Expense (OE) account. These activities include routine internal administrative actions, routine maintenance of domestic facilities, and procurement and deployment of information technology software and systems in existing facilities. USAID is planning on incorporating these CEs into a NEPA regulation for all USAID OE-funded actions later this year. The CEs and NEPA regulation will not apply to activities funded by appropriations through the USAID's program accounts or affect the NEPA procedures for those activities in 22 CFR 216, Environmental Procedures. Published September 9, 2009 (74 FR 46413).

- Department of Energy (DOE): DOE published two variances from certain requirements of their NEPA procedures for American Recovery and Reinvestment Act grant activities.

a. One variance applies to $156 Million in American Recovery and Reinvestment Act grant activities and the funding decisions for combined heat and power systems, district energy systems, waste energy recovery systems, and efficient industrial equipment. Funding decisions will be made without the DOE-prepared environmental critiques, environmental synopses, and supplemental reviews called for in 10 CFR 1021.216(c) through (h). Instead, DOE NEPA Compliance Officers will participate in a Merit Review Board that evaluates environmental questionnaires prepared by prospective grantees. The Merit Review Board will consider environmental effects when selecting potential projects, and continue to prepare EAs and EISs before commencement of activities that could affect the environment. In accordance with 10 CFR 1021.343(c), DOE asserts that this variance is in the interest of public welfare by enabling expeditious completion of Recovery Act projects. Published August 18, 2009 (74 FR 41693).

b. The second variance applies to the $2 Billion in American Recovery and Reinvestment Act grant activities and the funding decisions for the Electric Drive Vehicle Battery and Component Manufacturing Initiative. Funding decisions will be made without the DOE-prepared environmental critiques, environmental synopses, and supplemental reviews called for in 10 CFR 1021.216(c) through (h). Instead, DOE NEPA Compliance Officers will participate in a Merit Review Board which will consider environmental effects when selecting potential projects, and continue to prepare EAs and EISs before commencement of activities that could affect the environment. In accordance with 10 CFR 1021.343(c), DOE asserts that this variance will reduce the time needed to process grant applications and is consistent with the requirement for expeditious initiation of Recovery Act activities. Published June 26, 2009. (74 FR 30558).

- Corporation for National and Community Service (CNCS): CNCS published categorical exclusions for CNCS projects and activities that provide funding assistance to existing non-federal programs and projects such as educational programs, community volunteer programs, health care support, housing repair projects, and wildlife conservation programs (many funded under the American Recovery and Reinvestment Act of 2009) that do not have significant effects on the quality of the human environment and therefore should be categorically excluded from more intensive environmental reviews under NEPA. Published July 15, 2009 (74 FR 34309).

- Department of Commerce National Telecommunications and Information Administration (NTIA): NTIA had no NEPA procedures in place for the Broadband Technology Opportunity Program and published categorical exclusions for broadband deployment activities funded under the American Recovery and Reinvestment Act. NTIA also provided a link to the administrative record for the new categorical exclusions. It is available at: http://www.nepa.noaa.gov/procedures.html under "NTIA Broadband Technology Opportunities Program Categorical Exclusions and Administrative Record." Published for comment on July 9, 2009 (74 FR 32876) and final published October 13, 2009 (74 FR 52456).

- Department of Commerce: Proposed Categorical Exclusions published for comment May 26, 2009 (74 FR 24782) and final published July 10, 2009 (74 FR 33204).

- National Endowment for the Arts: Protocol for Categorical Exclusions Supplementing the CEQ NEPA Regulations for Certain American Recovery and Reinvestment Act Projects - published May 6, 2009 (74 FR 21011).

- Federal Highway Administration: Notice of Memorandum of Understanding Assigning Environmental Responsibilities to Alaska. Draft published October 14, 2008, with comments requested by November 28, 2008 (73 FR 60750). Final signed on September 22, 2009 http://www.dot.state.ak.us/stwddes/desenviron/index.shtml.

BACKGROUND: Transportation reauthorization authority at sections 6004 and 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Public Law 109-59), allows some states to take the place of FHWA in meeting environmental responsibilities (e.g., coordination and consultation under other federal environmental laws such as the Endangered Species Act, Clean Water Act, and National Historic Preservation Act) and obligations with regard to categorical exclusions (section 6004) and with regard to broader environmental analyses (section 6005). The Memoranda of Understanding outlining the states roles are at found at http://www.environment.fhwa.dot.gov/strmlng/index.asp. California, Utah, and Alaska have section 6004 categorical exclusion authority and California has section 6005 authority.

- Federal Transit Administration-Federal Highway Administration, Department of Transportation: Proposed Environmental Impact and Related Procedures - published for comment August 7, 2007 (72 FR 44038) and published as a final rule on March 24, 2009 (74 FR 12517).