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RENR 470 Exam 1

Key Concepts:

Terms in this set (72)

Introduced by House/Senate
-if enacted and approved by the President, becomes law (=Act)

A bill that had been ratified

Initial codification/citation

Statute (public law/act)

Compiled annually in the U.S. Statutes-at-Large
-printed by the Office of the Federal Register

U.S. Code (USC)

Act is codified into USC which is published every 6 years with annual supplements
-51 titles (new ones added as needed)

Congress changes the law

Regulations -
Federal Register (FR)

Two publications: Annual Code of Federal Regulations and Daily Federal Register

Code of Federal Regulations

Codifies rules of executive departments (e.g. Interior, Agriculture) and agencies (e.g. EPA, NRCS)
-50 titles
Chapter, subchapters, parts, sections/subsections

New/additional interpretations of the regulations

Published in Federal Register, available for public comment

Revised
-accepted/rejected
-entered into US code

Provided by agency to assist in interpreting the Regulations

Executive Orders

Developed by the administration

Purposes of NEPA

-National Environmental Policy
-Prevent Environmental Damage/Why?
-Enrich understanding of ecosystems and environments
-Create CEQ

1959 - Senator James Murray proposed CEQ
1969 Senator Henry Jackson and Congressman John Dingell authored the legislations

1969 and onward - Professor Lyndon Caldwell, Indiana University promoted the development of Environmental Impact Statements (EIS)
1977 - Executive Order 11991 Jimmy Carter, CEQ authority to issue regulations

Action forcing procedures-
Environmental Impact Statement Section 102 (2) (C)

-Proposed action
-Identify any adverse environmental impacts/effects
-Alternative actions
-Short term vs long term
-Irreversible or irretrievable resource commitments

Better decisions

Project planning and NEPA process should be parallel

Ex:
Planning: Establish goals and objective
NEPA process: Define project purpose and need

Participants in NEPA process

Oversight agencies - Council on Environmental Quality (CEQ) and US Environmental Protection Agency (EPA)

Implementing agencies - Third party contractors and Private project applicants

Lead agencies - Concerned citizens and organizations, Cooperating agencies, Native American tribes, State and local agencies

Cooperating agencies - Agencies with jurisdiction by law and Agencies with special expertise

Council on Environmental Quality (CEQ) - Guidance

Duties and Functions:
-assist and advise president
-information
-research
-agency compliance
-develop policy
-investigations
-environmental trends
-report to the president through Annal Environmental Quality Reports

Responsibilities:
-issue regulations
-resolve disputes
-mediate interagency disputes
-training and advice to agencies

Staff and funding of CEQ

Funding: High in Carter, Bush Sr., and Bush Jr. administrations

Moderate in Clinton's

Low in Raegan's

Staff is the same but low staff for Clinton and Bush Jr.

Environmental Protection Agency (EPA)

-Filling and notice of EISs - Federal Register
-EIS review
-Cooperate with Lead Agency

Implementation by Federal Agencies

NEPA requires agencies to:
-consider environmental impacts
-maintain sufficient staff to implement
-prepare procedures for implementation
-every agency develops its own procedures but must include specific NEPA mandated procedures for complying

-early resistance
-judicial enforcement - Calvert Cliffs vs Atomic Energy Commission
-Overkill (EISs)
-1978 CEQ regulations
-problem solving emphasis
-Environmental Assessments (EA) replace EIS

Public involvement

A vigilant, informed and well prepared public is the key to enforcing NEPA

Threshold for NEPA compliance

1. Proposal
2. Legislation
3. Major federal actions
4. Significantly
5. Affecting
6. Quality of the environment

NEPA is given the proposal for action then provides a recommendation or report for the proposal
-what follows is a decision then implementation

If significant cooperation or support of an agency (not appropriations or ratification of treaties)

3. Major federal actions

-Actions proposed by a federal agency or a nonfederal entity if the action is subject to some form of federal control
-Federal action-policies, plans, programs, projects
-Non-federal action-finances, assisted authorized, or permitted (Federal Nexus)
-"Small federal handle": unclear when is applies i.e. does a small federal involvement federalize the entire project; is federal approval necessary to implement all or a portion of the project
-Ministeral vs discretionary
NEPA only applies when feds have discretionary authority (i.e. some control), doesn't apply to land condemnation/acquisition, inaction on a proposal may require NEPA is agency reviews a proposal but does not move forward to achieve the purpose and need for the proposed action, connected (cannot chop up action to avoid) and similar and cumulative actions

4. Significantly

Refers to context and intensity of the environmental effects; define thresholds

6. Quality of the human environment

Categorical Exclusions (CATEX or CE)

"A category of (federal) actions that does not individually or cumulatively have a significant effect on the human environment."

For minor, routine or ongoing practices

Avoids need for NEPA process

Do EA if any doubt

No standard exclusion list; each agency develops its own exclusion list

Effect of exclusion:
-No EA or EIS requires; must have internal memo; have reasoning available to defend
-No public notice required; e.g. Texas Department of Transportation

Exceptions:
-Extraordinary circumstances: wetlands, endangered species habitat may require an EA on that part of the project

Statutory conflicts:
-NEPA must sometimes yield to other laws
-ESA ongoing conflict

Emergencies: must consult with CEQ

Functional equivalency:
-CWA, CAA, CERCLA, etc.
-EPA is the only federal agency the courts have recognized to have function equivalency

International:
-NEPA not required but World Bank, IAF funding

National Security:
-May be required but no disclosure

Requirement to prepare EA

-For any action that isn't covered by CATEX; may prepare for planning
-Provides sufficient evidence to determine that EIS is needed
-If action normally requires an EIS go to it directly

Who prepares EAs?

Agency, project applicant, consultant, or other agency

Principles of EA preparation essentially the same as EIS

Each Agency develops its own procedure (approved CEQ)

Format and content

Need - project's overall objective (essentially same as "Statement of Purpose and Need" of EIS)

Action and alternatives - mitigation to avoid affects; possible alternatives

Probable impact - direct, indirect and cumulative effects of actions/alternatives

Agencies and persons consulted - and their concerns

10-15 pages; usually longer

May be used; similar to EIS

Agency/Public Involvement

Preparation required; often similar to EIS; agency dependent

Federal Register notice of availability, newspaper, mailings to involved/interested groups

Context:
-affected region
-affected locality
-affected interests

Intensity: severity of a proposed action on the environment
-environmentally beneficial actions
-public health/safety
-unique characteristics
-degree of controversy
-uncertain, unique or unknown risks
-precedent - setting aspects
-cumulative effects
-endangered species effects
-cultural resource effects
-violation of environmental protections laws

Meaning of "affecting" = impact

-ecological, aesthetic, historic, cultural, economic, social, health
-direct, indirect, cumulative: all must be assessed

Concept of causation

Only reasonable foreseeable effects
-direct
-indirect
-cumulative

What is meant by "Quality of the human environment"

Natural environment - water, air, biota, T/E, soils, aesthetics

Build environment - traffic, noise, historical/cultural, land use, agriculture, housing recreation, utilities

Human health - natural disaster risks, hazardous materials, disease

Nonphysical environment - economic/social, psychological

Other - biodiversity, sustainability, transboundary, global

Finding No Significant Impact (FONSI)

Public document that describes why a proposed action would not have a significant effect on the human environment and therefore not require an EIS

Why it will not have an effect

EA serves as factual bases of FONSI

No particular notice process
-each agency has own procedure and must provide notice in an appropriate manner

In more circumstances FONSI must be made available for 30 days

-borderline cases
-unusual or new actions
-controversial
-action that normally requires an EIS

Integrate with other laws

Project-specific: usually single purpose, direct, indirect, and cumulative impacts, geographically restricted - this is most EIS

Programmatic: large geographic region and multiple impacts
-no specific defined place or facility
-more dealing with cumulative effects
-more generic
-regulation, policy, plan, program
-e.g. All BLM Districts will have grazing plan, wildlife habitat plan etc.

Tiering: preparation of a programmatic EIS facilitates preparation of project-specific EIS

Legislative: proposal to Congress by an agency for new legislation - very few done

Lead agency - responsible

Contractor (consultant)

Cooperating agency

Transportation Agencies

If federally funded, a state agency (e.g. TxDOT) may do the EIS - the state agency can do environmental, design, and engineering

Housing and Urban Development

Community Development Block or Urban Development Agency Grants from HUD
-preparation of EIS by applicant if they assume responsibility

Timing of EIS Preparation

-Don't need to do until a proposal for action
-Start early, stay late

Based on many variable, however, generally 12 months; may take years; each agency set its time frame

Public Involvement

-federal agency must take diligent efforts to involve the public
-no specific details as to how, up to agency, if local, newspaper, newsletters
-must make available if requested; if agency doesn't use FOIA
-if of national concern publish in Federal Register

Steps in preparation of EIS

Lead agency

EA (optional) - may do not required

Publish Notice of Intent (NOI) in Federal Register and newspaper etc.
-description of action, alternatives, scoping process, contact info
-first formal step

Scoping - solicit input from public and other agencies on issues and impacts
-extent of action: connected, similar, cumulative
-range of alternatives: No-action, reasonable alternatives, mitigation measures
-types of impacts: direct, indirect, cumulative
-other environmental laws: statutory redundancy & functional equivalency, CEQ guidance, 7 step process
-meetings: not required but often most efficient
-report

Draft EIS

Circulate and review draft EIS
-publish in federal register if of national concern otherwise locally
-must conduct public hearing
-"quick review"; process and merit
-participating in the NEPA process: inform, negotiate, litigate
-circulation
-required to file Notice of Draft EIS in Fed Reg
-45 day comment period, but may be extended

File Draft of EIS with EPA (previously CEQ)
-each Friday EPA lists EISs in Federal Register
-EPA Office of Federal Activities Website

EPA review
-actual environmental impact
-adequacy of the EIS

Public hearing (if necessary)

Prepare Final EIS
-must contain response to all comments received and discuss opposing views

Circulate FEIS

File FEIS with EPA

Adopt FEIS

Make Agency Decision - 30 after EPA file of FEIS

Record of Decision (ROD) - why agency has taken the proposed action

Supplement to EIS
-significant changes
-new circumstances
-handled in same manner as EIS - doesn't require scoping: NOI not needed
-focus only on sections that are altered

Trends
-2000 EISs filed in 1999
-around 500/year currently

Required contents of an EIS

-cover sheet
-summary
-table of contents
-statement of purpose and need
-alternatives, including the proposed action
-affected environment
-environmental consequences, including mitigation measures
-list of agencies and organizations consulted
-list of all federal permits
-appendices
-index

Key points about EISs

In summary, the purpose and need section in the EIS lays out why the proposed action, with its inherent costs and environmental impacts, is being pursued. If property described, it also limits the range of alternatives which may be considered reasonable, prudent, and practicable. If property described, at also limits the range of alternatives which may be considered reasonable, prudent, and practicable. In compliance with the CEQ regulations...Further, it demonstrates the problems that will result if the project is not implemented

Purpose and need

Purpose: specific objectives of proposed action
Need: broader underlying social need to which agency is responding

Description of proposed action should include:

-the name and type of proposal
-the names and other identifying information about action proponents
-location of the proposed action, including site, local, and regional maps
-project features, including design, construction, and operation of any proposed buildings and facilities
-construction activities and schedule
-future phases of the proposed action, if any
-build-out assumptions
-connected actions, in any
-features incorporated into the proposed action's design to avoid or reduce adverse environmental impacts

Rules regarding EIS alternatives

An EIS explains why certain alternatives were eliminated

Range of alternatives considered should include:
-alternative ways of meeting purpose and need
-no action alternative
-alternatives outside lead agency's jurisdiction

Rigorous evaluation and comparison are required

Preferred alternative must be identified in:
-draft EIS if one exists
-final EIS

Environmentally preferable alternative must be identified

Mitigation measures for alternatives must be described

Developing the range of alternatives to include in an EIS - Selection of alternatives - is considered the "Heart" of the EIS

In practice, developing an adequate range of alternatives is one of the most problematic areas of NEPA. Unfortunately, there is no clear rule covering the types and number of alternatives that must be included in an EIS. Over the years, however, interpretations by the courts have helped federal agencies develop a better understanding of those that must be included and those may be excluded

The range in alternatives in an EIS should be governed by the "rule of reason." Sometimes an EIS is held inadequate based on the rule of reason

The range alternatives must achieve the proposed action's objectives as stated in the statement of purpose and need

The range of alternatives must foster rather than constrain the options available to decision makers

The range alternatives must be feasible

Alternatives that are remote and speculative need not be considered in an EIS

Alternatives with more significant effects than the proposed action need not be evaluated in an EIS

Alternatives with impacts that are distinguishable from the proposed action need not be evaluated in an EIS

No action Alternative

Federal project: future circumstances without project

Approval of applicant programs: future circumstances without approval

Plan of program revision: continuation of current plan or program in future

Types of Environmental Effects

-direct effects
-indirect effects
-cumulative effects
-growth inducing effects
-changes in land use patterns, populations density, or growth rate
-conflicts with land use plans, policies, or controls
-unavoidable effects
-short term uses of the environment versus long term productivity
-irreversible or irretrievable commitments of resources
-energy requirements and conservation potential
-natural or depletable resource requirements
-effect on urban quality
-effect on historical and cultural quality
-socioeconomic and environmental justice effects

According to EPA, cumulative impacts analysis must consider

-resources and ecosystem components
-geographic boundaries and time periods
-past, present, and reasonably foreseeable future actions
-the condition of the environment
-thresholds to asses resource degradation

Mitigation in theory and practice

The CEQ NEPA Regulations provide five types of measures to deal with significant environmental effects:
-avoiding
-minimizing
-rectifying
-reducing
-compensating

The common idea running through these mitigation concepts is that the measure will result in a physical change to the proposed action that will actually reduce or eliminate impacts. In its simplest terms, a mitigation measure should be a solution to an identified environmental problem

In practice, however, federal agencies sometimes write mitigation measures that do not meet any of NEPA's definitions of mitigation. For example, some of the following language is commonly found in NEPA documents
-consult with...
-conduct further studies...
-prepare a plan to mitigate...
-strive to protect the resource...
-monitor the problem...
-submit a recommended solution for review...

The common fault shared by these types of "paper mitigation" measures is that they do not solves the environmental problems disclosed in the NEPA document. Other mitigation measures, such as complying with plans and policies, or providing funding for mitigation implementation, may be effective if they are actually shown to solve a problem

Five categories of mitigation under CEQ NEPA regulations

-avoiding impacts by not taking certain actions
-minimizing impacts by limiting degree or magnitude of action
-rectifying impacts be repairing, rehabilitating, or restoring affected environment
-reducing or eliminating impacts through preservation and maintenance
-compensation for impacts by replacing or providing substitute resources

Responding to comments

-modify proposed action or alternatives
-develop and evaluate new alternatives
-supplement, improve, or modify analyses
-make corrections
-explain why no further response is necessary

General principles and special considerations in EIS preparation

-analytic emphasis
-focus on significant effects
-conciseness
-emphasis on alternatives
-no post-hoc rationalization
-interdisciplinary emphasis
-writing style
-scientific accuracy
-tiering
-incorporation by reference
-incomplete or unavailable information
-cost benefit analysis
-information not for public disclosure

What is environmental justice?

Refers to fair and equitable treatment of people, regardless of race and income level, in the implementation of environmental laws, regulations, and policies

Environmental Justice Implementation

-executive order 12898
-presidential memorandum to federal agencies
-CEQ NEPA guidance
-EPA Office of Environmental Justice
-Agency-specific programs

Affected Environment

Direct effects
-caused by the proposed action and occurs at the same time and place as the action
-e.g. vegetational removal

Indirect effects
-caused by the proposed action but occurs later in time or father removed in distance
-e.g. increased air pollution due to more cars going to a newly built building

Cumulative effects
-results from the proposed action's incremental impacts when these are added to the impacts of other past, present or reasonably foreseeable future actions

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